Michigan Criminal Defense Lawyer Blog
As a Detroit DUI lawyer and a Michigan driver’s license restoration attorney, I spend almost every minute of each working day dealing with both the short and long-term legal consequences of Michigan’s drunk driving laws. My focus in DUI cases is beating the charge, or at least keeping my client out of jail and minimizing consequences, if not avoiding them outright. In a Michigan license restoration or clearance case, I concentrate on winning back the privilege to drive for someone who has lost it because of multiple alcohol-related driving (DUI) convictions. There is a time gap, and really a “life gap,” between these two events, however. It can take years, and it can certainly feel like a lifetime, from your 2nd or 3rd (or 4th or 5th, for that matter) DUI conviction to when you can file a driver’s license appeal in the hopes of getting back on the road, legally.
This 2-part article will take a look at some things you should be doing (or should have done) between your last DUI conviction and the time you become eligible to file a license appeal. This is important stuff, because what a person does and does not do in the months following a 2nd or 3rd DUI conviction that results in a license revocation plays a key role in whether and/or when he or she can later successfully restore his or her driving privileges. One thing you can take to the bank, no one has ever lost a license appeal for having done too much.
As it turns out, the “gap” between your last DUI conviction and the time you become eligible to file for restoration of your license is a very real, often difficult period. Many people will just “endure” it, doing little more than just waiting for it to be over. Unfortunately, too many lawyers play no real role during this time period, either, and just wait and hope for a call from a returning client who, by the mere passage time, finds him or herself eligible for a license appeal. That kind of ignorance misses things on multiple levels, because being “able” to win a Michigan driver’s license restoration case requires a lot more than merely being “eligible.”
Given the indisputable fact that what a person has or has not done in the time since their last DUI becomes the very focus of their license appeal, it would be incredibly short sighted for me, as a Michigan license restoration lawyer, to just sit and wait and hope that anyone who calls will have used his or her in-between time wisely. Because the general scope of this article is rather broad, we’ll confine our examination to a more summary review of those things people in the real world are likely to actually do, or at least have a chance of actually doing, that will help them win a license appeal after his or her license has been revoked. Even a cursory look at this subject, however, will involve packing a lot of information into these pages. As a result,in order to do this subject justice, these installments will be a bit longer than usual. While this is by no means intended to be a comprehensive examination of this subject, by the end of this article, you should get the general “gist” of things.
First, we need to define our inquiry a bit. When you’re convicted of a 2nd or 3rd offense DUI in Michigan, you are automatically categorized as a “habitual offender.” There is no higher offense in Michigan than a 3rd offense DUI. A 5th DUI is still charged in court as a “3rd” DUI, so when I use the term “3rd,” it can mean anything from a person’s actual 3rd offense to his or her 5th or 6th offense, and even numbers beyond.
This “habitual offender” label carries more than just a regrettable designation. The habitual offender laws require that your driver’s license be revoked as a result of a 2nd or 3rd DUI conviction. “Revoked” means taken away for good. In the case of a 2nd DUI within 7 years, your license is revoked for life, and you are not eligible to file an appeal for at least 1 year. In the case of a 3rd DUI within 10 years, you must wait at least 5 years before you may begin the appeal process. This is very different than merely having your license “suspended.” Suspended means that the license will reinstated upon a certain, specified date, or, for example, if a particular sum of money is paid. You can’t just apply to get a revoked license back; you must go through a formal license appeal process with the Michigan Secretary of State’s Driver Assessment and Appeal Division (known as the “DAAD”) to win it back. Until that happens, you won’t get your license reinstated, no matter how many years, or even decades it’s been since you lost it. Accordingly, the use of the word “lifetime” when we talk about your driver’s license having been revoked is completely accurate and absolutely literal.
The “habitual offender” designation also includes what amounts to a legal presumption that you have an alcohol problem. This means the law outright declares that, just because you have a 2nd DUI’s in 7 years, or a 3rd (or subsequent) within 10 years, you have an alcohol problem. As much as you may not like the idea, it is very simple in its application. Similarly, in the real world, and absent all the legalities, most people would rather quickly agree that anyone with 2 DUI’s in 7 years, or 3 within 10 years, has a drinking problem. Generally speaking, the only person to ever disagree with this assumption is the person about who it is made, at least in some cases. The Secretary of State thinks no differently, except it must also take into account the presumptive legal effect of the habitual offender laws.
Therefore, we begin with the idea that your license gets revoked because you are seen by the state as having a drinking problem. That angers a lot of people, but the reality is you won’t get anywhere by fighting that battle. If you want to get your license back, you’ll have to play by the state’s rules (lot’s of people waste years trying to fight this, or do it “their way,” all to no avail) and accept the proposition that the state assumes you have a drinking problem, and that you have to prove you’ve “fixed” it. “Fixing,” in that sense, means getting sober. This sets the bar to winning a license appeal rather high, and we must jump over and clear it in order to restore your Michigan driver’s license or obtain a clearance of a Michigan “hold” so that you can obtain a license in another state.
It can seem like there are a million technicalities you have to observe in order to win a Michigan driver’s license restoration case, but the two central and most important legal issues you must prove to the DAAD, and do by what is known as “clear and convincing evidence,” are:
1. That your alcohol problem is under control, and, more important,
2. That your alcohol problem is likely to remain under control.
The first of these two is easier. Proving that your alcohol problem “is under control” means establishing a sobriety date. It means you fix the date of your last drink, and then submit evidence that either proves that, or at least generally supports or is otherwise consistent with it. This is an oversimplification, of course, and the “proof” we’re talking about generally means your letters of support.
Proving the second issue is much more involved, and for all the complexity involved, really boils down to proving that you’re really a safe bet to never drink again. This, of course, implies that you not only recognize that you have a drinking problem, but have taken the necessary steps to bring it under control, and, more important, have the tools to keep it under control. This essentially defines the beginning point of a driver’s license restoration or clearance appeal.
This can also be a really big problem, because for many people, the ending point of their last DUI is a defiant denial that they have any kind of drinking problem. It is precisely this kind of thinking that is, without a doubt, the primary obstacle to winning your license back.
Many people have to hit their head against the wall any number of times before they ever “get it.” Worse yet, some people just never “get it.” When you wonder how much a person has to lose before he or she wakes up to the fact that is alcohol that is the common denominator to all of his or her problems, bear in mind that to this day, despite all the advances we’ve made, and the treatment ideas and methods out there, 3 out of 4 alcoholics still never even seek treatment for their drinking problem. Finding true sobriety is by far more the exception, rather than the rule. The ugly reality is that most people with a drinking problem die with (and in large part because) of it.
It is, therefore, not uncommon for someone, while he or she is dealing with a DUI, and before they ever decide to throw in the towel on their drinking, to say something like, “This is bull$**t!” Psychologically speaking, it’s an intellectual chasm that separates a person facing a 2nd or 3rd DUI and who suddenly “gets it,” from someone who still denies that his or her drinking is a problem. Only those who admit they have a problem with alcohol, and then do something about it, have any chance of winning a license appeal. For as complex as this subject can be, most of the important concepts are rather simple.
Thus, your last DUI arrest either results in your “getting it,” or not. While we now understand, through modern research, that there is a “contemplation” stage wherein a person will start to examine his or her drinking and consider the possibility that it has become problematic, within the context of a Michigan license appeal, it is in the following stages, the preparation and action stages, that things really start to turn around. The state, for its part, wants to see proof of both your coming to believe you have a problem and what you’ve actually done to get and stay sober. In other words, you have to not only talk the talk, you have to walk the walk.
In part 2 of this article, we’ll pick up by looking at how, after your last DUI, not “getting it” is addressed in recovery programs, and how that fits into a license appeal. We’ll see how the idea that you should “fake it until you make it,” often heard in Alcoholics Anonymous, is helpful. We’ll also examine, amongst other things, how and why AA attendance is NOT required to win a Michigan driver’s license restoration case. Of course, we’ll also see how “getting it” is central to winning back the privilege to drive.