Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began examining the legal issues in a Driver’s License Restoration Appeal, and saw how many of the issues specified in the Rule governing the Appeals actually folded into 2 (and sometimes 3) simpler issues. From there, we narrowed the scope of our review down to that one issue that is really at the core of any License Appeal, that the person’s alcohol problem “is likely to remain under control.”
Here, we’ll put this issue under the microscope and try to show how a person proves that their alcohol problem “is likely to remain under control.”
At the Hearing which was the subject of another article from last week, the Hearing Officer pointed out that proving abstinence is relatively easy, and there are tests, such as urine tests, and even hair follicle tests, which can substantiate claims of abstinence. He then pointed out that there is no such test to prove a person won’t drink again, and that “proving” this is, at its core, more subjective than anything else.
This really cuts to the heart of a License Appeal.
How does a person prove that they won’t drink again? The DAAD, after all, knows that even some of those who they have examined very closely and to whom they have granted Licenses go out and drink again. Those that come to their attention either test positive for alcohol on the mandatory ignition interlock, or pick up another DUI.
It would probably be easy for the DAAD to require 10 years of Sobriety backed up with 10 years of AA attendance. That would certainly weed out most of their trouble. The problem with that is that the law allows a person to file an Appeal 1 year after their 2nd DUI within 7 years, or 5 years after their 3rd within 10 years. On top of that, the DAAD Rules only require 1 year of abstinence, at most.
So what does it take for a person who has DUI’s spanning 3 or 5 or 7 years to prove that, after 1 year of abstinence, they really are a safe bet to NOT drink again?
In the first place, it must be understood what “abstinence” means. The DAAD has been upheld by the Appellate Courts in requiring a person to prove “voluntary” abstinence. This means that even if a person has really and truly “seen the light” and gotten sober, such sober time accumulated while on Probation doesn’t really count. The DAAD calls that “living in a controlled environment.” It means that even if a person is NOT tested, they are still under a Probationary Order to not drink, and that violating that Order can result in Jail. Sober people will tell you that true Sobriety occurs independent of such an Order, but the DAAD can and does require that the person prove abstinence when NOT under such an Order.
Thus, a person who was on Probation for 2 years after a 2nd DUI had become, technically speaking, eligible to file an Appeal after 1 year, yet we’re being told that they would have been Denied. That’s true.
Therefore, such a person would have to complete that 2 year Probationary period, then wait until even more time had passed until they could actually win a License Appeal. For what it’s worth, just how long a person needs to wait can vary, and I make that determination after assessing the potential Client’s situation. Typically, a person should wait at least 90 days after Probation has ended to file a License Appeal, which means they wouldn’t be sitting in front of a Hearing Officer until at least 6 months had passed after their Probationary term ended.
Sometimes, I might determine that closer to a year is better, and as I tell any potential Client unhappy to hear this, I’m in business to make money, not send it away, but I won’t take an Appeal that I don’t think I can win. Given that I had a 100% win rate in 2010, and have won 171 of the last 173 Appeals I have filed in about the last 2 years (giving me an overall win rate of 98.4% for that period), and that I back my claims up with a guarantee that if I don’t win the first time, the next Appeal is free, I hope they understand my judgment to be correct, and in their best interests. Telling someone they need to wait is clearly NOT in the best interest of my income, so I think my integrity and sincerity in making such a determination is obvious.
Beyond the mere passage of time, however, what must a person do to “prove,” to the DAAD’s satisfaction, that they won’t drink again?
At its simplest, they must prove the depth and genuineness of their commitment to live Sober. They must prove both the desire and ability to live an alcohol-free life.
Most people can probably prove the desire to do that, but the DAAD wants to make sure that desire isn’t overcome by temptation. And this concern extends throughout the person’s lifetime, not just for the next year or two. This leaves the person to prove the ability to remain alcohol-free by demonstrating the lifestyle changes they have made to achieve that goal and the skills they have developed to avoid or resist temptation both now, and in the distant future.
In truth, this is where I come in. There is a reason that more than two-thirds of all License Appeals lose, and yet I win over 98% of those that I file. If it was as easy as just telling someone what they had to say, I could create a pay site, put that stuff up, and watch the money roll in while I spent my days on vacation. But it doesn’t work like that, or anywhere near it.
Each person has his or her own Sobriety story. Knowing how to take that story and frame it is a large part of what I do. In my Office, for example, my first meeting with a Client, before they ever go and have their Substance Abuse Evaluation completed, takes about 3 hours. Sometimes, I can talk fast and get it done in 2 and ½ hours, while other times it can take more than 3 and ½ hours. I have to get to know the Client, in much the same way a Doctor has to get to know the patient in order to rule out or try any particular treatment. I have to draw out from my Client the details of the metamorphosis they went through to become sober. I need to know at what point they really began to understand that they had an alcohol problem, and how (and how long) they fought with that until they accepted it, and decided to get sober. I want to know the details of that acceptance and that transformation from drinker to non-drinker. I want to explore, with them, the rewards that sobriety has brought, and then help frame these facts into their story.
Time and time again, Clients tell me how they’ve never thought about their Recovery in this or that way, or never been able to see the “story” in their transformation. That’s fine; that’s my job.
In doing that, the Client will look deep within themselves and see each specific, small step in the Recovery process as important, and then see the whole process, from beginning to end, kind of like a movie of their lives.
When the Client gets a handle on this (often, they don’t think they have a handle on it, but I know when they’re ready enough), they can then move forward and sit in front of a Hearing Officer ready to answer his or her questions and prove that they are, in fact, likely to never drink again.
This is a fluid, moving process. It varies from person to person, but the reality is that if a person has made a real commitment to remain sober, and not drink again, then those details can be drawn out and strung together in a way that “proves” that their alcohol problem “is likely to remain under control.”
As I have noted in previous articles, there is something about a person who has genuinely gotten sober that just seems to “ring true.” For those involved in AA, it seems to be more obvious, and they have all the little catchphrases (things like “gratitude is the attitude” and “avoid wet faces and wet places”) that make talking about Sobriety seem so effortless. Those who had gone to AA, but no longer attend, will remember some of these little sayings when prompted. Those that have never been to AA have likely never heard any of them. Knowing these little clichés is great, but they have to be tied to specific realities in a person’s life to mean anything, and in all cases where a person has undergone the change from problem drinker to non-drinker, these phrases are merely labels, or tags, for various points along the road of Recovery. Whether or not the person has a label for any such point is irrelevant, because everyone who has travelled this road has passed these points.
Again, it becomes my job to help the person put names and words to these things.
For as much as is involved here, if I’ve done my job right, then I’m not trying to make a person be someone there not. In screening potential Clients to make sure I only take a case that can be made a winner, I limit my Clientele to those who have really become Sober. In that regard, I’m not trying to turn GI Joe into Barbie. I’m only helping a person present the realities of their own Recovery.
When Hearing day approaches, and all the time spent in preparation, and in getting good Letters of Support has resulted in the filing of an Appeal I have determined to be a winner has passed, I remind my Clients that above all else, as we walk into that Hearing Room, they only need to be the person described in those Letters, and in their Substance Abuse Evaluation. I reassure them that they are not walking into some Hearing to paint a phony picture of themselves. Instead, they are walking into a Hearing Room where their only job is to present a true and accurate picture of who they are, as compared to who they once were.
When the “story” being told is the truth, then there is no risk of screwing up the details. And when the truth is that a person really “gets it,” and is committed to and has made the changes necessary to live an alcohol-free and Sober life, then the challenge of proving that their alcohol problem “is likely to remain under control” isn’t so much of a challenge, after all.