Within the body of my Driver’s License Restoration articles, I have covered the most important and relevant legal issues and how they’re managed as part of a License Appeal. One issue particular issue within my License Restoration Practice, called the “Seldom Occurring Issue” on my website, has been coming up so much more often recently that it suddenly doesn’t seem so “seldom” anymore. This issue is a Revoked DUI Driver’s ability to win a License Appeal when they’ve been caught driving after having had their License Revoked for multiple DUI’s.
In this article, we’ll examine what happens when a person is otherwise eligible to file a License Appeal, but has gotten one or more Driving While License Suspended or Revoked charges since the time of their Revocation for their last DUI.
The actual legal issue, as presented in DAAD Rule 13 (The Rule which governs License Appeals), reads as follows:
“That the petitioner has the ability and motivation to drive safely, and within the law.”
Almost everyone, at first glance, tends to skip over the word “ability.” In truth, the only “inability” to drive that I encounter is a person’s lack of a Driver’s License. That said, the State does make inquiry if the person has any mental health or medical conditions which would affect their physical or mental ability to drive. A person who is subject to seizures, for example, will be required to get what essentially amounts to a medical clearance before they’ll be let back on the road.
However, that’s not all there is to an inquiry about “ability.” From the State’s point of view, if a person has had their License Revoked, meaning they cannot drive at all, under any conditions, and they wind up getting caught driving anyway, then that person has a questionable ability, at best, to drive within the law. This is because, despite all the evidence they present about their Sobriety, they still have a demonstrated tendency to not follow rules.
In the real world in which I Practice, most people in this situation were driving to or from work, or to pick the kids up from school, or something like that. Obviously, if they were cited for another DUI, then the driving itself wouldn’t be at issue. And those who do drive, despite a Revocation, do so with a heavy heart, and an eye on the rear-view mirror, because they know that if they get pulled over, it will NOT be good.
And of course, some people do get pulled over.
In most such cases, Judges are somewhat sympathetic to a person’s need to drive, and while that doesn’t make a Revoked License charge go away, it does mean most people are done and over with the whole thing in a matter of a few months, or a year at most.
As I noted in another article about a different aspect of this issue, anytime a person who is already Revoked is thereafter convicted of any driving offense, much less a Suspended/Revoked License charge, they will automatically face a mandatory additional Revocation of their Driver’s License. Depending on the initial period of Revocation (1 year for 2 DUI’s within 7 years, and 5 years for 3 DUI’s within 10 years), they will face either another 1 or 5 years of Revocation, making them ineligible to Appeal for at least that much longer.
Having covered the “math” involved in these post-DUI Suspended/Revoked License charges in the previously-mentioned article, we’ll direct the focus of our inquiry in this article to how the Secretary of State’s Driver Assessment and Appeal Division (DAAD) views this whole thing.
To be clear, this is really a “trigger” issue, in the sense that it is only applicable (i.e., “triggered”) when a person files for a License Restoration Appeal and has one or more Suspended/Revoked driving convictions since their License was first Revoked.
As noted before, the State has a definite position here. Years ago, a Hearing Officer put it something like this to my Client:
“Your License was Revoked for multiple Drunk driving convictions, which means the State took away all permission for you to drive. The State said, in a way, that the rule for you was simple; no driving whatsoever, and this means 24 hours of each day and 365 days per year. Yet, you chose to disobey this Order, and you drove anyway. You basically said ‘I’ll do what I want, no matter what the State says.’ Now, you’re asking the State to give you a License, and the State wants to know what assurances it has that you will follow the rules we place upon you for the first year, at least, if you win this Appeal. After all, you’ll be granted, if anything, only a Restricted License for that first year. This will either allow you to drive only during certain hours, or during any hours, but only for work purposes. So what can you tell me that makes me think that if we previously told you that you cannot drive at all, and you did anyway, you’ll now follow the limitations place upon any License we might give you for the next year?”
This is a fair, but tough question. And that pretty much sums up how the State “views” this.
For me, the presence of this issue means that the Client and I will have to formulate an answer to a question like that above, long before we walk into any Hearing Room. Think about what your answer might be to the above-question if it was just posed to you.
Many people will first note that they didn’t “mean” to break the law, and offer some explanation for why their Suspended or Revoked License charge wasn’t so egregious.
Then, they’ll go on to explain how difficult it has been for them to get by without a License, and how much they would truly appreciate and treasure the ability to drive again, and that they’d do nothing to jeopardize that.
And while that might sound good, it doesn’t even begin to prove that the person “has the ability and motivation to drive safely, and within the law.” In other words, the State is saying you’ve clearly demonstrated, both with your DUI’s and thereafter, that you cannot follow the rules of the road, even if those rules are that you can’t be on the road. So what’s different now? What has changed in you that will make you inclined and able to follow rules hereafter?
To take it even further, if a person wins a License Appeal, and during that first year with a Restricted License, is allowed to drive to, from and during the course of their employment, what will they do if they get a frantic call from a family member in need of a ride? What if a wife with a Restricted License gets a call from her husband informing her that he was in an accident with his car, and that although he was uninjured, the car is not drivable, and he’s stuck, without a ride, on the side of the road on a cold January day? Will she have the ability and wherewithal to tell him to sit tight, and she’ll call around and find someone to pick him up? Or will she jump in the car, thinking, “this is an emergency,” and drive off to go get him?
The State’s position is clear, if not inconvenient. That wife cannot go get her husband. There is no provision for “emergencies” in a Restricted License. And if a person has already been caught driving after their DUI Revocation, they have already established a record of NOT following the rules.
And this, of course, brings us right back to the question we asked a few paragraphs earlier: What has changed to make the State believe that, if confronted with such a situation, or any situation which would present what we might call “compelling” circumstances, the person would resist breaking the rules, and instead, NOT drive?
The correct answer depends on many factors, including (but not limited to) the circumstances surrounding the person’s Suspended/Revoked License charge(s), how much time has passed since that offense, and other changes a person may have made in their arrangements to alleviate the “need” to drive when they are legally unable to do so.
For all of that, this is not a particularly difficult issue to handle, if the Appeal is properly prepared. “Properly prepared” means several things, including making sure the Client is prepared to answer the Hearing Officer’s questions about what’s so different now, and, perhaps most importantly, making sure the Appeal isn’t filed too soon.
There is a certain “I’ll know it when I see it” aspect to determining how long to wait. For me, this is the product of considerable experience dealing with the DAAD. While it is hard to set forth an example of when enough time has passed, it may prove instructive to look at a situation where I’d say NOT enough time has passed:
Assume Don Driver had 2 DUI’s: One in 2001 and a second in 2005. As a result, he was Revoked until at least 2006. In 2006, however, he was caught driving, and was convicted of a Suspended/Revoked License charge. As a result, his Revocation was extended by another year, until 2007. In 2008, despite having been eligible to file a License Appeal, he was caught driving again. Same outcome, except this time his Revocation is extended another year, until 2009. In August of 2010, he was again caught driving, and his Revocation was extended another year, until August of 2011.
If Don were to call me in June or July about the prospects of filing a License Appeal as soon as he became legally eligible (in August), I’d tell him we better wait at least another 6 months after his eligibility before we even thought about Appealing. I know how these cases are decided, and I’d know that Don would stand a snowball’s chance in hell of winning a License Appeal filed as soon as his mandatory Revocation was up.
For my part, I’m all about winning these cases. I guarantee I’ll win any Appeal I accept, or the next is free. As of this writing, I have won 177 or the last 179 License Appeals I have filed in the last 2 years or so, give or take a month. I know what it takes to win. That means I also have a pretty good idea (if not actual experience) of what it takes to lose. I won’t take an Appeal I’m not sure I can win.
And I am in business, of course, to earn an income. I have no financial interest in turning away anyone who wants to come and pay me for a License Appeal. Thus, if I tell a person they need to wait, it’s not because I have too much money. It’s because I will not just take money and file an Appeal that I’m not certain will actually succeed. Sure, there is a bit of ego here, too. I want to keep, and improve, my Record. Right now, for the last 25 months and those 177 wins, my success rate stands at 98.88%. I have enough cases to keep me busy, so the prospect of getting paid, but not winning, is one in which I am decidedly NOT interested.
The remainder of the issue we’re examining, the person’s “ability and motivation to drive safely…”, really only arises in rare cases In fact, a person would have to have a demonstrated record of getting into accidents, and/or injuring people in order to trigger the need to address this component. The point of the DAAD’s focus will always be upon the person’s ability and motivation to drive within the law.
As far as motivation, the prospect of winning back a License is usually enough. I think it’s fair to say that even the State can figure that one out. Why that word was included in the Rule is anyone’s guess, but as I have pointed out in other articles, Rule 13 is filled with redundant clauses, and certainly does not stand as an example of good draftsmanship.
Anyone who either is, or will soon become eligible to file a License Restoration Appeal, and who has picked up a Suspended/Revoked License charge after their last DUI, needs to be prepared to submit the legally-required “clear and convincing evidence” that they have “the ability and motivation to drive safely, and within the law.” And a person can’t even begin to do that until they’ve thought the matter out, and can formulate a satisfactory answer to a question like the one we reviewed, above.