Michigan Criminal Defense Lawyer Blog
Frequently, in my role as a Michigan driver’s license restoration lawyer, I am called upon after someone has tried and lost a previous license appeal. Sometimes, the person will have tried on his or her own, while other times, some lawyer may have been at the helm. In this capacity, I work as a “fixer.” Last week, I met with a new client who has used 2 different lawyers (well known names in the criminal/DUI world, but not regulars at license restoration cases) for each of her prior unsuccessful appeals. We spent more time than my usual 3 hours for our first meeting, and at one point, she looked at me, somewhat exasperated as we looked at the various details important to her case, and said of her prior attorneys, “We never went over any of this!” I was honestly somewhat embarrassed (for them, of course) and, to soothe her emotions, replied that they probably didn’t know to get into this much detail because I spend most of every day on license reinstatement cases, and would thus be aware of nuances not so obvious to them.
There are often differences in the way I have to handle a driver’s license restoration appeal for someone who has already lost as opposed to someone who has never filed before. In those cases where no prior appeal has been filed, I get to begin with a clean slate. When someone has appealed before and lost, we’re somewhat stuck with certain facts provided in that prior case. It’s kind of like hiring a builder: If the project begins with a vacant lot, the builder can have his or her own way with the plans. If the builder is brought in after the house has already been framed, he or she is constrained by what’s there. While there might be some ability to shift things around, the basic structure has already been established and some things just can’t be moved. Thus, when a person has lost a prior license appeal, things said in the letters of support, for example, become a matter of record. While some things said in the letters can be clarified, for the most part, they cannot be changed. This means that, at best, any problems with previous letters (or the substance abuse evaluation or a person’s actual testimony, etc.) will need to be either clarified or “worked around.”
Whether things from a prior appeal need to be clarified, changed, or simply worked around, it’s all a matter of “fixing” what was not right (i.e., what was wrong) in any prior, unsuccessful appeal. For me, identifying such problems is easy. The “fix” itself may be anything from simple to extraordinarily difficult, but there’s no way to even start upon it without first identifying it. It is not uncommon for someone trying to win back his or her driver’s license without a lawyer to file a subsequent appeal with the Michigan Secretary of State’s Administrative Hearing Section (AHS,and formerly the DAAD) without having fully understood what caused the first one to lose. This is not to say that a person doesn’t read the opinion denying his or her appeal and understand what is said. What often gets overlooked, even by lawyers, however, are the subtle connections between those things that are explicitly stated in an order denying a license appeal and those things that are not. I often say that license appeals are governed by a “million little rules,” many of which could be described as well hidden, if not unwritten. To put it another way, you don’t know what you don’t know. Let’s look at an example…
In order to win a license restoration case, a person’s substance abuse evaluation must list a prognosis of either “good” or “excellent.” This means that a prognosis of “poor,” “fair” or “guarded” will require the appeal to be denied. Let’s say that Denise the driver files a license appeal and loses because her evaluation had a “fair” prognosis (or, because her alcohol problem was determined to be in “sustained partial remission”). The hearing officer’s order denying her appeal clearly explains the problem in his or her order. When she’s able to file again the following year (a person must wait a whole year to file another license appeal after a denial), Denise figures she’s got it all straightened out because she carefully read her old order and made sure everything the hearing officer said was corrected and/or covered. Accordingly, she files her next appeal, goes for her hearing, and a few weeks later, gets another denial in the mail. She’s stunned, and reads and re-reads the order several times to discover what happened. When she finds it, she’s shocked, because nothing was ever mentioned about it in last year’s hearing. The situation I’m about to describe for our example comes directly from my real life experiences as a license restoration lawyer, and I’ve dealt with it many times:
On her 1st substance abuse evaluation, it was noted that Denise had gone to AA for a while, and listed “occasional” current attendance, about 1 time or so per month. In truth, Denise really hadn’t been going to AA very much at all, and wasn’t sure how to respond to the evaluator, particularly because it wasn’t as if she specifically planned to never go to another meeting; she was open to it, but had just gotten busy with life. From her point of view, one of the gifts of sobriety is the ability to get busy with productive things, and she felt fortunate that she had positive things to do on the nights when there were meetings she could attend, so her participation in the program had just naturally waned.
Unfortunately, what Denise didn’t notice was that on her 1st evaluation, the evaluator, under the “Continuum of Care Recommendations” section had stated that she should continue with AA at least 1 to 2 times per month. When she had her next evaluation completed, Denise was pretty honest with the evaluator, noting that she really didn’t go to AA anymore. What Denise didn’t know, however, is that her evaluator was kind of “old school,” and thought at least some AA attendance was good for just about everyone. In that sense, she didn’t mean that Denise would only stay sober if she continued with AA, but more that Denise should always know the program is there when she needs it, and that in the same way you might tell just about anybody that going to church once in a while is a good thing, for Denise, checking in at AA once in a while, or even “once in a blue moon” would be about the same.
In the “Continuum of Care Recommendations” section of her 2nd evaluation, it was suggested that Denise should continue with some kind of AA attendance, even if occasionally, just to reinforce her understanding the dangers of relapse and to at least maintain some contact with the larger recovery community. At her hearing, Denise was clear that she really hadn’t gone to AA in over a year. Because of this, she lost.
Very few lawyers, much less people winging it on their own, understand the implication of that continuum of care recommendation and why it caused Denise to lose. To the Secretary of State, that recommendation means that Denise should be involved in AA and should keep going to meetings; the SOS misses the subtlety of the recommendation being for occasional or optional attendance. I have seen this very situation many times and have always “fixed” it. If the hearing officer sees a continuum of care recommendation that is not being followed, he or she will see the person as not being in compliance with the evaluator’s recommendation. In other words, in Denise’s case, the recommendation was interpreted by the hearing officer as conditionalizing her improved prognosis, the “condition” being that Denise go to AA meetings.
By the time either of the evaluations used in our hypothetical example were written, it was too late to win the case. Had Denise hired me for her initial appeal, I would have never filed that first evaluation. If she would have come to me after losing the first time, I would have not only caught the issue of her prognosis, but also the continuum of care recommendation and would have, in the first place, had her evaluated by a counselor who knows not to default to an AA recommendation unless community support is actually needed, and, in the second place, have caught that before filing and therefore not filed another guaranteed loser.
By contrast to Denise’s “guaranteed loser” appeal, when I take a case, I guarantee that I’ll win it. If Denise had been my client, her case would have gone from a guaranteed loser to a guaranteed winner. Of course, a necessary precondition to my taking any case is that the client has to have really and truly quit drinking. I can fix a lot, but we cannot fake genuine sobriety, nor would I ever try to do that. “Fixing” means taking something that’s good enough to be saved and repairing it.
The statistical reality is that most people who try their own license appeal (and those with some lawyer who claims to “do” them) will lose. License restoration and clearance cases are hard to win, and that’s by design. The main rule governing these cases begins by providing that, “The hearing officer shall not order that a license be issued, unless the petitioner, by clear and convincing evidence, proves the following,” (emphasis added) meaning that it starts with a negative mandate. If you aren’t keenly aware of that as you’re putting a case together, then you’re clearly fooling around with a lot you don’t know about. This is where those “million little rules” come in, and it takes more than just knowing them to win; you have to know how every single facet impacts of each every other. You don’t get this by studying, nor by just being “smart.” The cold, unglamorous truth is that is learned the hard way, after years and years of regular practice. Only after losing every way possible does one fully know how not to lose anymore.
When you think about it, there are lots of ways to win or lose a license appeal, but in the final analysis, all you need is just one of the ways to lose to be denied. To me, this is like waterproofing a big submarine; if you miss just one little spot, there’s a leak and you’re going to sink. You can have a million things right with your license appeal, but if you have just one thing wrong, then your case is over before it begins. And remember, the negative mandate of the main rule instructs that hearing officer to “not order” return of your license unless you prove certain things by “clear and convincing evidence.” That means that the hearing officer is looking for the reason to deny your case. Unless you know every reason why you could be denied, you’re just flying blind.
So it goes that “fixing” things requires the vision to be able to see what went wrong in the first place. That vision requires looking beyond the obvious and the stated. This is not rocket science, but then neither is installing a water heater, and that’s something I’d always leave to the professional who does it regularly. If you’re eligible to try and win your license back (or even if you want to find out if your time is up), or, if you’ve already tried an appeal before and lost, contact me. When you’ve had enough screwing around and want to be able to put a valid license back into your wallet – guaranteed – call my office. We’re here to help, and can be reached Monday through Friday, from 8:30 to 5:00 (EST) at 586-465-1980.