Michigan Criminal Defense Lawyer Blog
In my role as a Michigan driver’s license restoration lawyer, about the very first thing I need to consider when someone contacts me to win his or her license back is whether or not the person is eligible. Both in the eligibility section of my website and in the license restoration articles on this blog, I have examined what it means to be legally, as in technically, eligible to file for a license reinstatement. In this article, I want to direct the focus to what it takes to have a real chance to win a license appeal before the Michigan Secretary of State’s Administrative Hearing Section (AHS). This is an important subject because people often mistake being legally eligible to file a license appeal with actually being able to win their license back, and the two things are definitely not the same. Think about it this way; as a U.S. born citizen, I am legally eligible to run for President of the United States, but in reality, I have zero chance of actually winning any election. The point I want to explore is how long you really need to wait, after you become legally (technically) eligible before you have a chance to succeed in a license restoration case. My perspective on this is, of course, framed by the fact that I guarantee to win every license appeal case I take. It makes a good starting point for our discussion to observe that it is almost impossible for anyone to win his or her license back by filing right after the mandatory 1-year revocation period after 2 DUI convictions within 7 years has ended.
One of the many, but important requirements to win a Michigan driver’s license restoration or clearance case is that a person must prove a period of what is called “voluntary abstinence,” meaning a chunk of time when he or she did not drink by choice, and without the threat of getting in trouble for doing so. With the exception of time spent on probation in a sobriety court program, any time not drinking while on regular DUI probation does not count, nor does time spent on parole or living in a halfway or three-quarter house while on probation or parole. To make this simple, let’s assume that Two Time Tina is somewhat lucky in her 2nd offense DUI and only gets 1-year of probation (typically, 2nd offenders in the Detroit area can expect to be put on probation for either 18 months or 2 years). By law, Tina is “eligible” to file a license reinstatement appeal after her 1-year revocation has passed, but by the time that actually occurs, she will likely still be on, or have just gotten released from, her 1 year of probation. This means that she will not have any significant period of “voluntary abstinence” where she can prove that she abstained from the use of alcohol without any threat of legal trouble if she did drink. This doesn’t even begin to take into account that rules governing license restorations also give the hearing officer wide discretion to require an even longer period of abstinence than just a single year. Above and beyond everything else, the real “meat and potatoes” of a license appeal is that a person has quit drinking for good and is a safe bet to remain sober. In order to even begin making those proofs, a person will need to have first accumulated some time off of probation or parole without drinking.
This all means that even though a person may be technically “eligible” to file a license appeal after his or her revocation period has ended, he or she may have absolutely NO chance of ever winning it. It also means that the whole “1-year” thing is completely misleading. I have never, in all my 26 years as a lawyer, seen any case where a person could file and win his or her license back as soon as their 1-year revocation period had passed, with the exception of a few sobriety court graduates. In my office, I generally won’t even consider taking a case if a person will not have at least 2 years of sobriety and closing in on 1 year off of probation or parole (again, there is a possible exception for those who have completed a sobriety court program). This is not a hard and fast rule, however. The Secretary of State must, as it turns out, count the time on probation during a sobriety court program where a person has been driving with an ignition interlock as “voluntary abstinence.” This has specifically been written into the law. Also, given how long it takes to prepare a case for filing, and then from the time a license appeal is filed until a person winds up actually sitting for a hearing before a hearing officer, I will often consider taking a case for someone who has been sober for about 18 months and been off of probation for around 8 months.
The key to a successful license appeal is proving that you are truly sober. “Sober,” in this sense, means a lot more than just “not drunk” at the moment. It means that a person has quit drinking for good and adopted an alcohol-free lifestyle. This involves profound life changes over and above just saying, “I quit” and then not consuming alcohol. Truly sober people live in homes where no alcohol is kept, and their partners usually don’t drink, either, and certainly don’t drink around them at all. It becomes much easier for the state to feel comfortable about a person remaining sober when he or she has more, rather than less years of sobriety, and has more support and less temptation in their lives. Thus, a person with 5 years of sobriety who lives in an alcohol-free home with a supportive partner that does not drink around him or her looks a lot less risky than someone who has only been sober for 14 months and also lives in a house where alcohol is kept or who lives, or is otherwise involved with someone who will drink in front of him or her.
Statistically speaking, the likelihood of relapse drops off rather sharply after the 5-year mark. If I had to pick an “ideal” minimum number of years of sobriety about which I feel most comfortable in filing a license appeal, I’d quickly go for 3. Recovery people sometimes call the first year of not drinking the “honeymoon” phase, and describe it as like riding a “pink cloud.” This refers to the fact that many people are all gung-ho when they first quit drinking. The second year is always more challenging, and is really make-it or break-it for many. By the third, however, a person will have likely faced most of the tempting situations they’ll encounter, have had plenty of bad days, plenty of good days, and more than enough time to really learn how to thrive in an alcohol-free has a real “permanent and solid” sound about it.
How is the reader to know if he or she is really eligible to win a license appeal case? The easy answer is to just call me. If you have anything less than 18 months of sobriety in total, or you haven’t yet been off of probation (unless you have completed a sobriety court program) or parole for something close to 8 months, then wait. Once you’ve crossed those timelines, we can analyze your situation. A person with 8 prior DUI’s probably doesn’t have a really good chance to win his or her license back with only 19 months of sobriety and 7 months off probation, but any such determination is best made within the context of all the facts. All of my consultations are done over the phone, during normal business hours, so you won’t waste time getting dragged in to find out where you stand. You can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 586-465-1980. We’re here to help. Many of the clients I get today are folks we’ve spoken with a year before, so whatever your situation, if you’re looking to hire a lawyer to win your license back, it never hurts to call.