Michigan Criminal Defense Lawyer Blog
In my various writings about driver’s license appeals in Michigan, I must always reiterate the preliminary importance of sobriety as a necessary perquisite to winning. The driver’s license restoration process is all about making sure that someone whose license was taken away for 2 or more drunk driving convictions doesn’t get back on the road until there is no doubt that he or she is forever done with alcohol. Anyone contemplating a license appeal after having his or her driver’s license revoked for multiple DUI’s is going to have to prove that not only doesn’t he or she drink anymore, but that he or she doesn’t hang around with drinkers, and has, instead, adopted what can be described (and must be proven) as a “sober lifestyle.” This is never a problem for anyone who is truly “sober,” but plenty of people – none within a million miles of actually being sober – don’t quite get this, and mistake the meaning of “sobriety” with not drinking heavily anymore, or just not being drunk.
The license appeal process is designed to be difficult. The very rule governing these cases instructs the hearing officer deciding a case to “…not order that a license be issued…,” meaning that he or she operates under a negative mandate. This is no accident. It makes sense, when you step back and think about it, that the very idea that a person whose license has been yanked for multiple DUI’s is considered too risky to put back on the road if alcohol is anywhere in his or her life. Imagine someone convicted of at least 2 embezzlement charges: Would you give him or her a job as a cashier? And yet there is no shortage of people who will call my office or go before the Michigan Secretary of State’s AHS (Administrative Hearing Section, formerly the DAAD, or Driver Assessment and Appeal Division, which in turn was not that long ago known as the DLAD, or Driver Assessment and Appeal Division) and try and explain that they are an exception, and that unlike everyone else, they can have a drink every once in awhile. That doesn’t fly with the state…
This kind of talk is not only a quick way to lose a license appeal, but is proof positive that a person is a million miles away from being truly “sober.” As a driver’s license appeal lawyer, I think this discussion should be front and center in every case, and, to that very point, I won’t accept a case for someone who has not really and truly quit drinking. The very important flip side of this is that I guarantee to win every case I take, so that sobriety not only gets you in the door, but assures that you’ll be able to slide a valid license back into your wallet sooner, rather than later. Having established that real sobriety is a starting point for winning a Michigan driver’s license or clearance case, let’s take a look at how people actually get sober. To be clear, I don’t mean the method (counseling and/or AA) a person may have used to help find his or her sobriety, but rather what happened inside of him or her that was the “push” that started the whole recovery journey. This is the key to how I win license appeals, because everyone who has truly quit drinking has gone through this. By contrast, not everyone who is sober got there because of time spent in AA or counseling…
This is a huge, and often misunderstood fact. There is a large and powerful school of thought within the academic corridors of addiction studies (this author being formally involved therein) that holds that all change is really what is described as “self change.” Known as the “Trans-Theoretical Model,” or “TTM,” one of its basic principles essentially translates to the notion that when a person gets sober, he or she does so because he or she wants to. This is a gross oversimplification, but even AA acknowledges that people who thrive in its program do so because they want what AA has. If all change is really self-change, and the ultimate credit for success after AA or counseling lies with the person him or herself, doesn’t it make sense that some people can change without having had any, or having had only limited external help? The answer, of course, is yes…
This is not to discredit the help that counseling or Alcoholics Anonymous provides. In fact, the vast majority of people who get and manage to stay sober have had some help, like AA or counseling, in the past. Some people would never have been able to manage sobriety without some of the things they learned in counseling, or through AA, but at the end of the day, a person chooses to either accept or reject the reality that he or she cannot pick up another drink. Especially in early recovery, some people need the help that AA provides when, for example, it advises newcomers to “avoid wet faces and wet places.” Also, things like accountability through counseling can help a person choose to decline an invitation that will likely lead to temptation. But even then, the decision to ultimately do one thing (not drink) over the other (drink) comes from within.
What leads a person to decide to quit drinking, or, as is the reality in most cases, finally quit drinking? Of course, everyone has his or her own reasons, but the Trans-Theoretical Model (TTM) focuses on the way people come to this decision, rather than the reasons that bring them to it: It’s called a “decisional balance,” and the decision to do one thing over another (for example, the decision to NOT drink, as opposed to drink) is described as “tipping the decisional balance.” Let’s break this down a bit:
Imagine something like the scales of justice, where you have 2 sides; the heavier side always goes down, and the lighter side goes up. For someone without any kind of drinking problem, the idea of going out for a drink doesn’t really have any counter-consideration. For someone who has to work late and then get up really early, the idea of going out for that drink has to be “weighed.” Perhaps the decision to have a cocktail is made because it’s a chance to catch up with a long-lost friend, and the friend has to leave early, as well, so the person making the decision concludes that it will be reasonably quick and shouldn’t pose a problem to get up the next morning. The “yes” side outweighs the “no” side. For someone who knows that he or she is struggling with drinking, the idea of a drink, or not, has both pros and cons. Most often, those of us on the outside see the cons for such a person as clearly outweighing and “pros,” but is the analysis and conclusion of the person making the decision that matters, and one of the many paradoxes is that the person with the problem usually seems to weighing things all wrong.
Now, take a single guy who knows his drinking is troublesome and who has been thinking about slowing down and/or quitting because just yesterday, after showing up at work all hung over and playing it off that he must have eaten something bad, promised himself, “No more.” In other words, our guy is right in the thick of a drinking problem. Imagine next that he meets a very attractive woman and strikes up a conversation with her, and that she suggests that they get together soon for a drink. If we could peer inside his head, we’d see those scales of the decisional balance tipping one way, and then the other. In the end, he may decide to meet up with his new beau for that drink, or he may not. Whichever course of action he chooses is the “heavier” side of the decisional balance. Of course, sober thinking simplifies this all by suggesting that he ask her out for dessert or coffee instead.
All people who decide to get sober have their decisional balance eventually tip in favor of NOT drinking. For any of countless reasons, too much weight piles up on the side of not picking up another drink, and a line in the sand is drawn: “I will NOT drink again.” Obviously, a person’s decisional balance tips when the negative consequences of his or her use of alcohol outweighs any the perceived benefits or fun. Indeed, by the time most people stop drinking they’d be the first to admit that it hadn’t been any kind of fun for a while. We must always remember that those looking in from the outside may see the scales line up very differently than the person him or herself. When you think about it, there are probably very few people who conclude too early that their drinking is problematic. In fact, it’s frequently the case that just about all the people they know (except their drinking friends) have been trying to tell them that very thing for a long time, and have grown frustrated that the drinker just doesn’t “see it.”
These are the lucky ones. The homeless people living under the freeway bridge by Comerica Park who don’t own anything beyond the unwashed clothes on their backs seem to have no “bottom,” along with no money, no future, no teeth, and nothing more than a plan to panhandle for enough money to drink some more. Having lost everything, there is really no tipping point in any concept of a decisional balance to make them decide to NOT drink. In fact, studies consistently prove that, in addition to these obviously hopeless cases, the majority of alcoholics never get better. Estimates range from dire to even worse, but it is generally accepted that more than 90% of all alcoholics never get and stay sober. It is known that less than 1 in 4 ever receive any kind of treatment. Most important, this is also known and understood by the Michigan Secretary of State’s Administrative Hearing Section (or AHS, and formerly the DAAD). This means that the state knows that, at best, only a single-digit percentage of all the people from whom it has taken a license for multiple DUI’s will ever maintain any real long-term abstinence from alcohol. This helps explain why the rule governing license appeals has that negative mandate that the hearing officer “shall not order that a license be issued, unless the petitioner, by clear and convincing evidence, proves all of the following…” In other words, for every 1000 people who have had their licenses yanked for multiple drunk driving convictions, more than 900 haven’t really had their decisional balance tip in favor of never drinking again. Most probably never will. Lots of people say that they’re done with drinking, but only a small fraction actually stays sober for good.
So what is it that makes that decisional balance tip? Obviously, it is something unique to the person who makes the decision. In my role as a Michigan license appeal lawyer, I’ve had plenty of people for whom a 2nd DUI was that tipping point; on the other hand I’ve had people with 6 or more DUI’s for whom even a 5th arrest wasn’t enough. As an aside, the person with the most DUI convictions that I’ve had, and whose case I won the first time around, had 13 priors. It took 1 more beyond an even dozen for his decisional balance to tip in favor of not drinking. Beyond everything else, we can be sure that those things that are stacked on the “not” side are painful. The balance in favor of not drinking tips that way because the consequences of drinking hurt, and they hurt more than any “fun” that may be left (but usually isn’t) in the enterprise.
There’s an old story that really sums this up better than any intellectual analysis ever could:
A guy has a summer job selling encyclopedias (back before computers, people often used to buy these multi-volume sets when a door-to-door salesman came by selling them). It has been a long, hot day, and after nearly 8 hours, he hasn’t sold a thing. On his way back to his car, he passes a short gravel road he’s passed by earlier because it only has one, dingy-looking house on it, down at the very end. Not having made a dime, he trudges down the gravel road to the house and knocks on the door. As he does so, he hears a dog howling inside. A minute letter, the door is opened by an old man, and as the guy starts into his sales pitch, the dog just seem to howl harder and louder. The poor guy can hardly hear himself over the dog, and he finally stops and asks the old man, “What the hell is the matter with that dog?” Without flinching, the old man replies, “That’s my hound dog; he’s sitting down on a nail.” Trying to process this, the salesman asks, “Will he be okay?” The old man, kind of surprised by the salesman’s lack of understanding, says, “Well, don’t worry; when it bothers him enough he’ll get off it and go sit somewhere else.”
The moral of the story, of course, is that we decide to change when we’re uncomfortable with the way things are. No one decides to change unless what he or she is changing away from isn’t working anymore, or we believe the alternative to be clearly better. Here, we only need to add the caveat that many people for whom we could substitute our judgment for their own continue to drink even though it’s obvious that it is wreaking havoc in their lives. As I noted, only a lucky minority pick up on this, while the larger majority will continue to engage in obviously self-destructive behavior that baffles friends and family on the outside while the self-inflicted damage just keeps piling up.
Everyone who becomes my client has been through this. Some people are good at talking about it. Many individuals who have spent a certain amount of time in AA are proficient at telling their story. Plenty of people, however, go through this process without thinking in the terms used by AA people or recovery “experts.” It’s not the words that matter. Nobody who quits drinking thinks about it in term of his or her “decisional balance.” This is where I come in. I can help my client put the words to his or her recovery story in a way that makes sense to the state, and clearly communicates the idea that the person has both the commitment and the tools to remain alcohol-free for life. We will find a way to look back and see how and why my client’s decisional balance tipped in favor of quitting, and how his or her life has changed in the time following that decision. As anyone who has ever traveled this road knows, the life changes involved in going from drinker to non-drinker are profound, even if they’re not all implemented at once. When we take a person with some years’ sobriety and juxtapose his or her life now with how it used to be when he or she was still drinking, we can see that extraordinarily profound change; in some cases, the two images of the self are almost irreconcilable
There is, of course, a lot to this. I don’t spend 3 hours with a new client at the time of our first meeting to talk baseball. The goal, in a license appeal, is to answer the state’s concern that your alcohol problem is both “under control” and “likely to remain under control” by demonstrating how you reached the tipping point in your decisional balance regarding drinking and how that decision is likely to hold because you are genuinely happy and enjoying the benefits of a sober lifestyle, as opposed to just merely existing in the absence of the problems that drinking brings. The whole concept of a “sober lifestyle” is important, but it is also deep; we’ll address it another day. For now, we can conclude this discussion with the certain knowledge that the decision to quit drinking for good always represents a tipping of one’s decisional balance for the better.
It is through a comprehensive understanding of the processes (and there are many) by which people choose to get and are able to stay sober that I am able to provide a guaranteed win in my license appeal cases. AA and counseling are fine, and helpful, but as we’ve seen, quite independent of whether or not a person goes or has gone to AA or counseling, the key to real sobriety is the tipping of his or her decisional balance to change (in this case, to not drink).