Michigan Criminal Defense Lawyer Blog
In a Driver’s License Restoration article I put up last week, I wrote about representing a Client who had previously won back his License, only to lose it again for another DUI. As I thought back on the Hearing itself, several observations made by the Hearing Officer presented themselves as the inspiration for this article.
Within the body of my License Restoration articles, I have covered this subject from every angle possible. This article will be a new twist on a familiar aspect of winning a License Appeal. Here, we’ll focus on the core issue in any License Appeal, that the person’s alcohol problem is “likely to remain under control.” This will be an in-depth and long article, and, accordingly, will be broken into 2 parts.
To set things up, let’s take a look at what needs to be proven to win a License case. The law governing License Appeals are Administrative Rules, and the one setting forth the legal issues and standard of proof in any License Appeal case is set out in what is known as “Rule 13,” reprinted below in relevant part:
(a) 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.
Now, before anyone rolls their eyes or runs off in panic, all of this can be boiled down to 2 or 3 rather simple things.
First, it is important to note that the Rule directs the Hearing Officer to NOT issue a License unless the Petitioner proves their case by “Clear and Convincing Evidence.” This means that, unlike just about every other law out there, this one is written in the negative. For all the discussion we could have about this, it more or less boils down to the Hearing Officer being directed to find a reason or reasons to NOT grant a License, and not the other way around.
If you look at the first part of the first issue, that “The Petitioner’s alcohol or substance abuse problems, if any, are under control,” you’d at first think that there must be an initial determination that the Petitioner (this means the person Appealing) has one.
In practice, the Secretary of State’s Driver Assessment and Appeal Division (DAAD) will have already concluded that a person who has lost their License because of multiple DUI’s already has an alcohol problem. Thus, when Hearing Officers write their Opinions Granting or Denying a License Appeal, they speak in terms of the Petitioner showing (or not) that their alcohol problem is under control. You can safely disregard that “if any” language, because the DAAD does.
In terms of substance abuse problems, it is extremely rare to find a person with multiple drug-driving charges. About the only time “substance abuse” come up is when the person has, in addition to a DUI, or multiple DUI’s, a drug crime, whether driving or not, on their Record. Because this situation, while not uncommon, only occurs in a minority of License Appeals, the result is that the inquiry in most cases is limited to alcohol problems, or occasionally both an alcohol AND drug problem, requiring what’s called a “poly-substance diagnosis.” Although the Rule is written in terms of “alcohol or substance abuse problems,” the overwhelming majority of real-life cases are limited to alcohol, so while everything we hereafter discuss will apply to both situations, it will be easier to simply limit our descriptions and discussion to “alcohol problems.”
It is relatively easy to prove that a person’s alcohol problem “is under control.” Since the way one goes about that is outside the scope of this article (and easy as it may be to prove, explaining it would fill a couple of pages, anyway), the reader will simply have to take my word for it on that score.
The second part of this issue, which we now know can be read as “The Petitioner’s alcohol or substance abuse problems are likely to remain under control” is the single most frequent cause of a lost License Appeal. For those that have tried before and lost because they later found out that they had submitted what was deemed an “insufficient” Substance Abuse Evaluation,” that essentially means that they have failed, in turn, to prove their alcohol or substance abuse problems will remain under control. This bears a little further discussion:
A significant part of my Practice involves representing people who have tried a License Appeal before, and lost. Some did it on their own, others had some Lawyer who claimed to “do” License Appeals. When I meet with them, they are understandably angry that whoever did their previous Evaluation didn’t do it well enough for the DAAD. The Client feels that the Evaluator ought to know how to complete this form to the State’s satisfaction.
I agree with that, but have also learned that most Drug and Alcohol Counselors have absolutely no clue about how to properly complete this form. And it’s not like the State offers any help. This is why I refer my Clients to a local Clinic that I know does a top-notch job with this most critical stage. Every once in a while, a Client wants to go back to some Counselor they liked, and while I have no problem with that, I do advise them that if the Evaluation turns out to not be good enough, they’ll have to pony up the money and pay to have it re-done by someone who knows what they’re doing, like the Clinic I mentioned.
In other cases, my new Client is angry at their prior Lawyer for not scrutinizing the Evaluation BEFORE it was submitted and and discovering that it was “insufficient.” Honestly, except for that relatively small number of Lawyers who devote the majority or at least a substantial part of their Practice to License Appeals, the remaining majority have no clue about what is or is not sufficient in a Substance Abuse Evaluation.
Whatever the situation, when an Appeal is filed in a case where the Evaluation doesn’t satisfy the DAAD’s requirements, the mere act of not meeting those requirements means that the person will not have proven, by “clear and convincing evidence,” that their alcohol problem “is likely to remain under control.” In other words, in order to even begin to satisfy that requirement, the Evaluation itself must be legally “sufficient.”
Now take a look at the second issue: “That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.” Can you imagine anything that would prove the first issue (“That the petitioner’s alcohol or substance abuse problems, if any, are under control and likely to remain under control.”) that wouldn’t likewise prove this one? In truth, the second issue is redundant, and the DAAD will accept proof of the first issue (actually, the second part of that first issue) as proof of the second. This, then, is really a non-issue. By having proven that their alcohol problem is likely to remain under control, the person will have simultaneously proven that they are a low to minimal risk to repeat past abusive behavior.
Moving down to the third issue, “[t]hat 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.” It is the same situation as above. There is nothing that proves that first issue (“That the petitioner’s alcohol or substance abuse problems, if any, are under control and likely to remain under control.”) that doesn’t likewise prove this third one. Can you imagine a person whose alcohol problem is likely to remain under control NOT being a low to minimal risk of drinking and driving again? Of course not. Thus, this third issue, like the second, is redundant, and “folds” into the first, and really requires no separate proof beyond what’s called for in the first issue.
Finally, in some cases, the fourth issue “[t]hat the petitioner has the ability and motivation to drive safely and within the law” is relevant. Specifically, it becomes relevant when a person has been caught driving AFTER they’ve been Revoked. In essence, the DAAD is asking why they should believe a person is gong to follow any restrictions of a new License when, previously, after being notified that that could no longer drive at all, they did so anyway. After all, such a person has a proven track record of NOT obeying rules, both at the time of their DUI’s, and thereafter, as well.
This issue is likewise outside the scope of this article, so the reader will have to trust me when I say that when this issue arises, it can (at least in any case that I accept) be dealt with rather easily.
This leaves us focusing on the second part of that first issue, that the Petitioner’s alcohol or substance abuse problem “is likely to remain under control.”
Having finally marked out the specifics of our inquiry, we’ll return, in part 2, to pick up with a detailed examination of what it means to prove that a person’s alcohol problem “is likely to remain under control.”