Michigan Criminal Defense Lawyer Blog
There are lots of reasons why a person can lose a Michigan driver’s license restoration or clearance case, but there are 4 very common reasons that I’d like to explore in this article. These things most often happen when someone hires the wrong lawyer, or, worse yet, tried a “do-it-yourself” license appeal. Precisely because these are the most common reasons license appeals wind up getting denied, they are also the very things I avoid doing when I handle a license case, and I say this with some authority, because when I represent someone in a license reinstatement appeal, I guarantee to win it. In other words, my clients don’t have to worry about getting denied for any reason, much less the four we’ll explore below. This can provide some much needed reassurance to someone hiring me after a prior, unsuccessful case handled either by some other lawyer, or by the person him or herself.
(1). I’ll start with what is always an amateur mistake of the highest order – calling a witness at the hearing. Witnesses are not only unnecessary, they are dangerous. The ONLY good thing I can say about live witnesses is that I don’t call them. Ever. It is almost impossible for me to even begin to, much less fully convey, just how colossal a blunder it is to present a witness at a license appeal hearing. Everything good and worthwhile a witness can say in person can be said in a letter of support. Witnesses make mistakes. They get nervous, forget stuff, and sometimes freak out when the hearing officer starts grilling the hell out of them. Letters don’t. Hearing officers want to see if they can trip up a witness, not because they enjoy being difficult, but because it’s part of the job to double-and triple check things, and witnesses can (and sometimes do) change their stories. Letters don’t. Simply put, letters don’t make mistakes.
(2). Letters that are properly drafted, that is. Many losses are occasioned by letters that aren’t good enough, and we’re not talking about writing skills, either. It couldn’t matter less if your letter writers are college English professors or people who are barely literate. As a colleague of mine has observed, most writers start out with good intentions, but end up producing nothing more than what he calls “good guy letters.” Honestly, you can be the most generous, kind-hearted and wonderful person on the planet, but if your letter doesn’t detail (emphasis on the word detail) your abstinence from alcohol, it isn’t worth the paper it’s printed on. The Secretary of State knows you need a license; everybody needs a license, but needing one isn’t enough. It does not matter to the state a bit what opportunities you have missed or will miss because you cannot drive, and it could not matter less how kind and nice you are. The ONLY thing that matters in the letters of support is proof of your abstinence from alcohol. Of course, it’s great when the letter writer can talk about other aspects of your sobriety, but that only matters when it intersects with direct observations about you not drinking. And for what that’s worth, a person’s observations of you not drinking is a very different thing from him or her not observing you drink. If you’re getting the idea that this gets complex, then you’re right on track. I pour over each and every letter of support, and wind up editing about 99% of them before they’re submitted. To put this another way, out of every 1000 letters I review, probably only about 10 are good enough without editing.
(3). Another common (and fatal) mistake is submitting what a now-retired hearing officer used to describe as a “questionable/insufficient” substance abuse evaluation. Technically called a “Substance Use Evaluation” but almost always, yet incorrectly referred with the word “abuse” in its title, this form is really the foundation upon which a license appeal is built. To a clinician, the form itself looks easy enough to complete, but lurking within it is a veritable minefield of traps and tricky nuances. The bottom line is that an evaluator (and it’s no different for a lawyer, either) will need a lot of training, including a lot of trial-and-error, before he or she knows what the Michigan Secretary of State’s Administrative Hearing Section (AHS) “wants” on this form. A clear example of this occurs when, instead of summarily listing the information requested in the space provided on the form, an evaluator includes an addendum and then puts something like “see attached” or “continued…” on the form. Beyond just including all the required information, a proper evaluation should also omit any information not requested by the form.
There is so much to all of this that my first meeting with a new client, which is scheduled before he or she has the evaluation completed, and takes at least 3 hours, is almost entirely dedicated to preparing for it. I need to make sure that every important detail gets listed on the evaluation, so as my client goes over the form line by line, I am filling out a form of my own creation, called a “Substance Abuse Evaluation Checklist” to make sure that nothing is omitted. I send this form, along with a copy of the driving record and any other relevant documents, with the client to give to the evaluator. I always considered it obvious, but a key role of the evaluation is to convey your recovery story to the Secretary of State. How can your lawyer know whether or not that’s been done if he or she doesn’t know the details of your recovery in the first place? And for as much detail as is required here, underneath it all is the very human story of a person having his or her wake-up call with drinking, deciding to quit once and for all, and then actually doing it. Quitting drinking isn’t recovering; the recovery is everything that comes thereafter, and is all about how one’s life changes for the better. It’s about the new friends and better family relationships and the improved finances and outlook on life and the better job and all the things that allow a person to honestly say that living sober is just plain better. Everyone has a story, and as the lawyer, I have to know yours like it’s my own.
(4). One of the most universal mistakes I see, and I really mean that I “see” it, is a lack of thorough preparation for the actual hearing itself. When I go to the AHS hearing office in Livonia and meet my clients in the waiting room, we will sit together and chat about the weather, the news of the day, or just about anything except our case. Why, you ask? Because we will have done our preparation the night before (if not earlier), and we’ll be so ready to go that I will deliberately want to relax my client and take his or her mind off the hearing. It’s natural for a person to get nervous as he or she thinks about the upcoming hearing: I get that. I know that no matter how much I reassure a person, there will always be some trepidation about what’s going to take place. Amongst other things, it’s the fear of the unknown. Still, I make sure my clients arrive at the hearing knowing every single thing that is going to take place and every question that will be asked by me and the hearing officer. Some hearing officers prefer that the lawyer ask most of the questions, while others want the lawyer to open the proceedings but then step aside for them to do most of the questioning.
Regardless of who asks what, my clients know exactly what is going to be asked. Of course, the backbone of all this is that my clients are, in the first place, genuinely sober, and therefore going in to tell the truth. This is critical. When you tell the truth, you don’t have to practice memorizing your story. Sure, you can go over things, but unlike someone who’s going to try and pass off a bunch of BS, my clients don’t have to try and keep the details straight; that comes automatically by being truthful.
This all seems pretty obvious to me, but every week, as I sit in the waiting room at the Livonia hearing office, I see lawyer after lawyer come in, greet his or her client, and then shuffle through a file to go over a few last minute details, or sit across from each other, knee to knee, huddling in quiet conference.
Huh?
That should NEVER be necessary. Beyond a lack of preparedness, I cannot even begin to imagine ever letting my client go to bed the night before without having prepped for the hearing and both of us agreeing, when we’ve gone over everything, that we are, in fact, prepared. How the hell can a person start to get ready the next day while worrying about what’s going to be taking place in a few hours?
As important as the prep session may seem, it really must be seen as something of a redundancy, done more to reduce the client’s stress than to fill in any missing gaps in the case itself. Understand this: If we’ve put in the time to properly prepare the case, it means we will have submitted a winning evaluation along with good letters of support, and those all-important documents will have accurately and truthfully marked your transformation from drinker to non-drinker. The hearing itself is the state’s opportunity to make sure that, as great as the story of your recovery may be, and as well as your evidence presents things, you are, in fact, the person described in the evaluation and those letters. If we’ve told the truth up to that point, then nothing changes, and we go in to let the hearing officer confirm your story. Still, it helps to know how things will go down, and I make sure that every one of my clients and I have a nice, long, and usually after-hours chat about what’s going to take place so that we can, to the extent possible, quash those “showtime” jitters.
So there you have them, the four biggest, most common mistakes that sink license appeals. Perhaps we should call them the four corners of failure, but you won’t have to worry about any of them with me. Remember, the license appeal process is about keeping anyone who poses a risk to drink again off the road. It’s not about drinking and driving; people who don’t drink aren’t at risk to drink and drive. The focus is on confirming that a person has both the commitment and the tools to remain alcohol-free. You have to prove that you’re genuinely sober to win your license back. If you are, then I can get you back on the road. If you’re not there yet, perhaps I can help you tip the balance in favor of a decision to stop drinking. Whatever your situation, when you’re ready to move ahead, read what all the lawyers have written, check around, and then pick up the phone and start calling. My office is open Monday through Friday, from 8:30 am until 5:00 pm, and can be reached at 248-986-9700 or 586-465-1980. We’re here to help.