Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began outlining how the biggest obstacle to winning a License Appeal after an initial loss is addressing and fixing the problems that cause the loss. Now we’ll move onto a more detailed discussion of some of those things, focusing on the less severe problems first, and getting into more serious, or catastrophic problems in part 3.
If the reason or reasons for the loss are significant, however, things are different than if they were not that bad.
In a recent article, I noted that I NEVER call witnesses in my cases. The long and short of that article was that anything a witness can say live can be included in a Letter of Support. Of course, knowing what should specifically be in those letters, and what is a waste of space (like how the person has suffered without a License, how they’ve learned their lesson and will treasure the ability to drive again, what a good and different person they are, or how their employment opportunities will be so much better if they could drive) is the result of considerable experience practicing before the DAAD. Anyway, many less-experienced Lawyers or “do-it-yourselfers” drag witnesses to the Hearing in the hopes that their testimony will help their case.
Quite often, it does not. As I noted in that witness article, Letters of Support cannot be cross-examined, do not get nervous, and certainly don’t make mistakes in testifying, because Letters don’t testify. Witnesses do all of the above, even if unintentionally.
As I sit across the conference table from someone who is hiring me to handle their second try at getting back on the road, and I read the Order denying their first Appeal, I often find inconsistencies between the testimony of various witnesses, or between what the witness says and what the person Appealing said earlier. To be clear, witnesses are kept outside of the Hearing Room while the person testifies, so they have no clue what was said. They are called in afterward, having no idea of what has transpired.
Let’s say Dan the Driver has testified that he has been sober for 2 years. In response to the Hearing Officer’s questions, Dan admits that he had a back injury at work about 9 months ago, and had a prescription for Vicodin, which he used then, but discontinued when his condition improved. Okay, not the best situation, but in and of itself, not the end of the world.
Dan lives at home with his parents (or it could be that he lives with his girlfriend) and either mom or the girlfriend are called in to testify. Even with a Lawyer asking the first questions, there will come a point when the Hearing Officer has an opportunity to question the witness, and be sure, they will.
So the Hearing Officer then asks Dan’s mom, or girlfriend, if he has ever used any narcotic medication within the last 2 years since his most recent DUI. “Not to my knowledge” comes the answer.
“Well, you live with him, don’t you?”
“Yes, but I don’t know everything that goes on in his life.”
“So your son (or boyfriend) is supposedly in Recovery, and you have no idea about why he shouldn’t have addictive, mind-altering narcotic medications at his disposal, or how any medially determined necessary use of those substances requires extra-special monitoring, or even the fact that he has those in your house? Are there any children who live or come into your home?”
And it only gets worse from there.
As I said before: Game over.
Perhaps the Hearing Officer will ask if there’s any alcohol kept in the home.
“Only for my husband” answers Dan’s mom. “Just for company” answers Dan’s girlfriend.
Again: Game over.
The nuances of why those answers will kill an Appeal are too much to explain in this article. The reader will just have to trust me that this is, in fact, the case. Any reader who has lost their first Appeal already has a sense of why that’s the case. Anyone who hasn’t done their first Appeal yet should hope to not find that out firsthand.
Anyway, the point is that the Appeal will be lost, right then and there. And when that Order denying their Appeal comes in, these reasons will be prominently mentioned.
How do you fix those errors for next year’s Appeal?
Does mom or girlfriend come back in and say “I lied?”
Do they write a letter instead of coming back in? Do they address their prior testimony, or just ignore it? Do they now state that, after the Hearing, all alcohol was removed from their home, or does doing that look too contrived?
These are just a few, simple examples of errors that can cause a License Appeal to be denied. Although it’s hard to explain in sufficient detail (at least in anything short of a textbook) the many things that can go wrong, other common reasons for losing have to do with an insufficient Substance Abuse Evaluation, or flawed Letters of Support.
In part 3 of this article, we’ll continue our examination of what’s involved in fixing a lost License Appeal in the following year.