Michigan Criminal Defense Lawyer Blog
In my Driver’s License Restoration Practice I have come to realize that very few people know that a person on Probation, or Parole, cannot win a License Appeal. Almost all of those with whom I speak are surprised to learn this. Often, I am asked something like “but I just received a notice from the State that I’m eligible to file for my License. How can that be?” This article will examine that conundrum.
To begin with, the reader should take note of the fact that License Restorations are really the bread and butter of what I do. I say this because the reader should bear in mind that I’m in business to make money, not turn away potential paying Clients. Therefore, when I tell a person they must wait before they can win a License Restoration case, I don’t so so because I’m too busy counting piles of money, I say it because I know exactly what it takes to win such an Appeal. In the year 2010, I brought over 70 cases to Hearing, and won every single one of them. This means I passed on any number of those Appeals just not ready, or able, to succeed.
The reason a License Appeal cannot be won while a person is on Probation, or Parole, is that the Secretary of State’s Driver Assessment and Appeal Division (DAAD), the department that handles all License Appeals, deems anyone on Probation or Parole to be “living in a controlled environment.” In pretty much every case where a person is on Parole or Probation, they are subject to drug and alcohol testing. Even if a person was required to test so many times per week for the first several months of Probation, and then allowed to terminate that scheduled testing, by virtue of the fact that they are still under the Court’s jurisdiction in Probationary cases, and under the jurisdiction of the Department of Corrections in Parole cases, they are still under Order to not consume any drugs or alcohol, and are always subject to a random test requested by their Probation or Parole Officer.
In order to win a License Appeal, a person must show that their abstinence from alcohol is voluntary, and that they have chosen not to drink without fear of consequence. The fact that someone is subject to testing, even if they are rarely (or never actually) tested, means they cannot prove that any period of abstinence was completely voluntary. At least that’s how the State sees it.
Let’s examine why it works out this way. The 2 biggest issues in a License Appeal are:
1. That the Petitioner’s alcohol problem is under control, and
2. That the Petitioner’s alcohol problem is likely to remain under control.
Proving that the problem is under control involves proving the person has not consumed any alcohol for a certain period of time. That’s the easier of the two.
The bigger problem, and the one central to this discussion, is proving that the person’s alcohol problem is likely to remain under control. From the State’s point of view, a person who has not been free of the possibility of testing for drugs or alcohol cannot prove voluntary abstinence. They can prove abstinence, but cannot prove, according to the State, that such abstinence has been completely voluntary, because there is still the threat of punitive sanctions for any positive test result. This means there is not an adequate basis to predict how well or poorly they’ll do once the possibility of testing has been eliminated.
In addition, a person filing a License Appeal must prove their case by “clear and convincing evidence.” I have examined this requirement in detail in some of my other Driver’s License Restoration articles, but for our purposes, it means a person has to more or less hit a home run in a License Appeal.
And this causes quite a bit of confusion. The truth of it is, the State could save itself, and a lot of people unnecessary work if it made this clear. As it stands, the State wastes lots of time processing License Appeals from people who are 100% sure to be denied. And those who file such Appeals are, understandably, very disappointed to learn about this “catch” after the fact
The fact that a person cannot win a License Appeal while on Probation or Parole is not a part of the DAAD Rules governing License Appeals. Instead, it is part of the case-law decided by the Michigan Appellate Courts in interpreting those rules, and how they are applied. Simply put, that’s the way it is because it’s the Law, and the Courts have said as much.
All of this seems to fly in the face of that Secretary of State notice which says, in essence, that your minimum Revocation period is about to be up, and you are eligible thereafter to file a License Appeal.
This is most often a problem for those who have been Revoked due to 2 alcohol-related convictions within 7 years. That 2nd conviction causes the Driver’s License to be Revoked for a minimum of 1 year, but allows a person to file an Appeal once that first year is up. The problem is that most people are put on Probation for at least 2 years after a 2nd DUI.
In the case of someone who had 3 DUI convictions within 10 years, they are almost always off Probation, and usually have been for quite some time, before they become eligible to file a License Appeal.
Most Parole cases involve a 5-year Revocation for 3 or more DUI’s within 10 years. Parole, of course, means a person was sent to the State Prison, and not a County Jail. Usually, a person will have had to rack up quite a few DUI’s before they’re sent off to Prison. Parole concerns are not uncommon, but they represent a fairly small percentage of License Appeals in general.
A common issue raised by those with whom I have this conversation is that they haven’t been tested for drugs or alcohol in quite some time. From their point of view, they have been completely voluntarily abstinent. Knowing they won’t be tested, or at least knowing when they’ll be tested means there’s plenty of time to drink without fear of being caught. From their perspective, they made a decision to become abstinent and remain sober and have stuck with it, not because they might get caught or face consequences if they drink, but because they’ve really cleaned things up.
Unfortunately, the State doesn’t see it that way, and any License Appeal filed while someone is on Probation or Parole will absolutely be Denied.
There is no workaround to this. A person simply has to wait to get off of Probation or Parole, and then wait a few months (while remaining abstinent, and continuing any AA or other support-group they might be involved with, if any) to be ready to file a License Appeal.
My job as a License Restoration Lawyer is to take cases that have potential and make them winners. Of course, a fair number of the cases I’m called about involve someone who had previously tried to have their License Restored, and lost because they were on Probation, or Parole, at the time. As I noted earlier, they are usually disappointed, not only because they lost their Appeal, but because they feel like they should have been informed beforehand of the Probation/Parole “catch” in a License Appeal.
And they’re right. However, my sentiments, and those who have filed and lost a License Appeal because of the Probation/Parole “catch,” mean nothing. As the saying goes, “it is what it is.” Hopefully, the reader will be learning this beforehand, and not finding this article after receiving a Notice of Denial.
The bottom line, a person must wait until after Probation or Parole is over to win a Driver’s License Restoration Appeal.