Michigan Criminal Defense Lawyer Blog
There is s big difference between being legally eligible to file a Michigan license restoration or clearance case and having a good chance of winning it. Unfortunately, the Michigan Secretary of State does not explain this anywhere, so most people learn the difference when they try, only to lose, and then read why the hearing officer denied their appeal. Here, I fault the state entirely, both because the rules allowing a person to file an appeal after either a 1 or 5 year revocation seem to suggest that eligibility is enough to win, and then for utterly failing to provide any clarification or explanation of why this is not the case. If the reader senses some anger on my part, you’re not wrong. I spend (or waste, more accurately) more time than I’d like having to explain this again and again to prospective license restoration clients who contact me about winning back their license, who, although eligible, are not yet ready. In this article, I want to examine the question of how long you should wait (or, to put it another way, how much sober time you need) before trying a license appeal.
There is no clear, simple answer to that question other than the age old, “it depends,” and that really provides a good starting place for this examination, because we’ll being by looking at what it depends upon. As a preliminary matter, and although it kind of goes without saying (but I’ll say it anyway), you can’t file a license restoration or clearance appeal until you are legally eligible. If you have 2 DUI convictions within a 7-year period, you will be ineligible to file for 1 year. If you rack up 3 or more convictions within 10 years, then you cannot file for at least 5 years. This is a long time, and I get many inquiries want to know if there’s anything that can be done to shorten that time frame, or some way to get a restricted license. Although a bit off subject for this article, the answer here is easy: no. There is no way to shorten your period of revocation, and no way to even file a license appeal of any kind until you reach your eligibility date. The only possible exception to this applies some people whose licenses have been continuously revoked since before 1998. Everybody else has to wait. Now let’s turn our attention back to those who are eligible.
You have to understand that the key to winning your license back is proving sobriety. The Secretary of State hearing officers who decide these cases are legally given wide discretion to decide these cases, and decide who has been sober long enough and seems like a safe bet to not drink anymore. They have the legal authority to require a period of sobriety of “not less than 12 consecutive months” and that is not otherwise arbitrary or capricious (essentially, that means ridiculous to the point of being illegal). Thus, while legal eligibility opens the door, it’s sobriety that wins the case. The real “meat and potatoes” of any license appeal is that you have quit drinking, and have the ability and commitment to remain sober for life. This all means that you have to accumulate a certain amount of abstinence to be considered a serious candidate to win your license back. Although there is no specific formula as to how long, it’s kind of intuitive that the more serious your drinking was, the more sober time you’ll need under your belt before moving forward.
You don’t need to be a rocket scientist to figure out what is meant by “more serious” drinking. The more DUI’s you have, the more serious your drinking. However, some people are luckier than others and don’t get caught as much, so the hearing officer is also going to consider things like the length of time you were drinking, and the level of your various BAC results (the state has this information). The more time you spent drinking, the more serious your problem will seem. A 32 year old who started drinking at age 19 and then got sober at age 28 looks a lot less risky than a 52 year old who started drinking at age 16 and got sober at age 50. And, of course, the longer you’ve gone without a drink, the better.
Your BAC scores also tell a story. Higher scores are always worse than lower scores. It’s common to see BAC scores climb as a person picks up more DUI’s, and that tends to indicate an increasing tolerance and a growing alcohol problem. The more of that you have, the more sober time you’ll want before filing a license appeal. To be clear, I’m not talking about years and years, but someone with 6 DUI’s over the course of 17 years will need more than just 12 months of sober time to have a good chance of winning a license appeal. By contrast, someone who files with 2 years of sobriety, and who only has 2 DUI’s accumulated over 5 years, neither of which had any kind of super-high BAC results, looks to have a much better shot at winning.
I could go on and on, but nothing I can say changes the “it depends” standard of how much sober time you’ll need to win your case. After more than 25 years as a lawyer, I have developed what I can only describe as an instinct to know when it’s time to file, and when it’s better to wait. That might sound kind of cheesy, at first, except you need to remember that I guarantee to win every case I take, so I not only trust that instinct, I quite literally bank on it. I don’t make money by NOT filing someone’s case, but neither do I profit by just accepting payment and filing any old case before it’s ready, because I’ll have to do it all over again the following year, without further charge, as part of my guarantee.
If I err, I’d rather err on the side of waiting too long rather than not long enough. Of course, I try very hard to get it just right, but there is no risk with waiting a bit longer, whereas there is a very real risk to filing too soon. Because I am fortunate to have a very busy license restoration practice, I don’t need to jump on any and every case that comes my way. In a sense, this is fortunate for anyone contacting me, as well, because it means I’m not just some guy desperate for work, with his hand out, wanting to grab money. I’m hungry to win, but only when I know I can win.
The big takeaway here? Simply being eligible to file a license appeal doesn’t mean you have any chance to win it. It is very easy for someone, without proper guidance, to file too soon and run full speed into a loss. There is no formula to determine how much sobriety is enough in any particular situation, other than the obvious idea that more is better. If you’ve been sober for more than 4 years, the “when” consideration is less applicable to you. If you’ve only been sober for 1 or 2 years, or maybe even 3 years, but you have a bad history (like you won your license back once before and then lost it again for another DUI, or you failed miserably on the interlock), then we should look at your situation before taking any action.
If you’re legally eligible and looking to hire a lawyer to win your license back, I can help. I know what to ask and how to make the determination as to when you should file, and, moreover, I guarantee that if I take your case, I’ll win it. As anxious as you may be to get back on the road, so am I to get you there, but only when we can actually win, and not just file. You can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST) at 248-986-9700 or 586-465-1980. All of my consultations are done over the phone, right when you call. We’re here to help.