Michigan Criminal Defense Lawyer Blog
In a prior article, I examined why I do not call witnesses for a Michigan Driver’s License Restoration Hearing. In my role as a Michigan Driver’s License Restoration Lawyer, I am often asked about witnesses. I think it’s about time to bring this subject back into the spotlight for another look.
I should preface this discussion by pointing out that I bring some qualified authority to this topic. I handle well over 100 License cases a year, and not only do I win about 98% of them, I have a first time win Guarantee. Part of my success, I think, stems from the fact that I will only accept a Michigan License Restoration or Clearance case for a person who is really and truly Sober. Another important component is that I spend about 3 hours with a new Client just to begin preparing them for the very first step in a Michigan License Reinstatement case: The Substance Abuse Evaluation.
I don’t know anyone who handles a fraction of the Michigan Driver’s License Restoration cases that I do. Nevertheless, it makes sense to question how I do things. After all, anyone checking out the Michigan Secretary of State’s website and information it provides about the Driver Assessment and Appeal Division (DAAD) will see that calling witnesses is permitted. At first blush, it would seem that corroborating or supporting witnesses would be a helpful thing. But they’re not. In fact, beyond just not being helpful, witnesses actually create problems, and lots of them, at that.
As a preliminary matter, it must be remembered that when a person files a Request for Hearing and Substance Abuse Evaluation with the Michigan Secretary of State in order to begin a License Restoration Appeal, they must also include Letters of Support. Technically speaking, they must submit at least 3 “good” Letters of Support, and can turn in as many as 6 (in a License Appeal I handled and won last week, we filed nearly 8 such Letters).
To keep this article concise, I will avoid getting into what those Letters of Support must and should include. Instead, the reader can simply assume that the Letters of Support will have been carefully reviewed and edited by me, and then reviewed (and possibly edited) by me yet again. By the time I’m done with them, they will be exactly what they need to be. All those Letters, signed by friends and family and other individuals who can contribute helpful information and observations, will contain everything necessary to help win their Michigan License Appeal Hearing.
This is really important because there is nothing a witness can say in person that he or she cannot say in a Support Letter. Yet there are all kinds of things a witness can be “tricked” into saying that a letter cannot be “tricked” into saying, because letters don’t testify. They don’t answer questions. They say what they say, and nothing more, and nothing less. You cannot “trick” a letter. You cannot question it. A letter does not get nervous, nor does it make any mistakes. It does not forget things.
Witnesses, however, do all of the above.
Let’s take an innocent enough example. Assume that Amateur Attorney Al is handling a Michigan Driver’s License Restoration Hearing for Sober Sam, and as part of the evidence he presents, he calls his Sam’s wife (or, for that matter, girlfriend, fiancée, or even sister), Honest Molly. Amateur Al asks Honest Molly about the last time she saw his Sam consume alcohol. Molly answers consistently with whatever Sam has testified, and with his other evidence. As Al is about to wrap up his questioning, he feels that everything has gone rather well so far:
“No further questions,” concludes Al.
“Thank you,” says the Hearing Officer.
Now, the Hearing Officer shifts in his chair, looks at the witness, and says, “I have a few questions, Miss Molly…”
“It’s your testimony that you haven’t seen Sam drink in “X” number of years, correct?”
“Yes sir,” replies Honest Molly.
“Miss Molly, do any of Sam’s friends drink alcohol?”
“Some might, I think, but not around him. All of his friends know about his drinking problem.”
“Does Sam ever go to any sporting events or anything like that with any of his friends?”
“Not that much, but yes, once in a while he’ll go to see a game with his buddies.”
“Do any of his friends drink while at those events, like at a baseball game, or hockey game, or something like that?”
“Um, I don’t know. I don’t think so…” Molly answers a bit tentatively.
(Meanwhile, Amateur Al is feeling that awful knot in his stomach, kind of like the one Sam felt when he got pulled over for his last DUI and knew things were going to get ugly)
“So you’re not sure?”
“No. But I mean, if they do, they don’t do it a lot. Sam never says anything about it to me.”
“How do you know they don’t do it a lot if you’re not there?”
“Well, Sam tells me everything.”
“Has Sam specifically told you if any of his friends drink at a Tiger’s game or not, or how much they drink?”
“Well, not exactly, but…”
“Then how can you say he tells you everything?”
Get the idea? Remember, the Hearing Officer’s decision is specifically governed by DAAD Rule 13, which is the specific Rule governing License Appeals, and it provides that:
“The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves [his or her case], by clear and convincing evidence…” (emphasis added)
This means that the Hearing Officer is looking for a reason to Deny the Appeal. The Rule under which the DAAD Hearing Officers operate is very clearly written in the negative. It is the person’s job to present an Appeal that is airtight, and the Hearing Officer’s job to see if there are any leaks.
Witnesses are NEVER airtight.
When I handle a Michigan License Restoration or Clearance case, I can get every beneficial and helpful thing I need from any person in the form of a letter. I get all the benefit, without any of the risk. When I see or hear of a Lawyer bringing in a witness, I call that an amateur mistake.
Beyond the elimination of an otherwise completely avoidable risk, and with no loss of benefit whatsoever, I think it is appreciated that my Hearings run quicker because I don’t drag witnesses in. Hearings can only last an hour. Many last less than that, and most of mine take about a half-hour. Any Hearing Officer getting one of my cases knows they won’t have to watch the clock.
Yet none of that matters nearly as much as the fact that my method produces consistent and Guaranteed wins. Heck, if things changed, and tomorrow I had to start calling witnesses and dragging Hearings out for the full hour to win, I’d do it in a heartbeat. I always point out to any new Client that “I’m in it to win it.” Given that my Guarantee provides I go back without further Legal Fee until the Client wins back their License, it is far better for me to win the first time. And in that regard, I think I’ve pretty much gotten this whole process down to a science.
Of course, for every rule, there are exceptions. I just haven’t had one yet. I cannot remember the last time I called a witness in a License Restoration Appeal. As far as a winning strategy goes, in my case, “the proof is in the pudding.”