Michigan Criminal Defense Lawyer Blog
The goal of every Michigan driver’s license restoration or clearance appeal is, of course, to win. Let’s skip over all the fluff and not mince words here, so we can be clear: the bottom line is that when you hire a lawyer, you want to win your case, not just pay some lawyer to keep you company at the hearing. I raise the bar a bit on that score, because I believe that when you hand over your money, you should expect to win, and I actually guarantee to do just that. When I take someone’s money, that’s exactly what’s going yo happen – they’re getting their license back. I can speak about this with such confidence because I concentrate in the license restoration field, and know exactly what to do to win. I handle about 200 license cases per year, more than anyone I know. As a result, when I state something as a matter of fact, it is. That may sound cocky (although it’s not meant to), but if that wasn’t true, then I wouldn’t be where I am, and wouldn’t be providing a guarantee in every case I take. Therefore, when I say you should never call a witness at a license restoration hearing, and that doing so is almost always a mistake, you can take that to the bank.
I was reminded of this the day I started this article, at an early morning license appeal hearing at the Livonia office of the Michigan Secretary of State’s Administrative Hearing Section (AHS). At the conclusion of my client’s testimony, the hearing officer asked, with a smile, if I had any witnesses, because he knows I I NEVER bring in witnesses. Calling witnesses is a first rate amateur mistake, that, if it doesn’t backfire, means you got damn lucky. I’d be less than honest if I didn’t admit I learned this lesson the hard way, many, many years ago. In fact, the thing about doing license appeals is that you just have to learn much of it the hard way. It’s kind of the same thing for riding a bike; you can get some of it right, but the most important part – not falling off – is one of the things you only learn through trial and error. And it doesn’t matter how smart you are, either. Einstein could have probably written out an equation about how the rider stays upright by maintaining a certain minimum speed that involves a particular balancing of his or her weight, but for all of that, he’d still would have landed on his a$$ until he jumped on and tried enough times to just “figure it out.”
Most of the lawyers I see at the Livonia office of hearing and appeals I never see twice. There is a small handful of familiar faces that I see from time to time (this is a very niche field in which to concentrate one’s practice, so in terms of being a real “license restoration lawyer,” you can pretty much count us on one hand, not including your thumb). If I’m in the waiting room with my client and some lawyer comes out to retrieve a witness, you can be sure it’s always someone who won’t do as many license appeals in his or her whole legal career as I will in a single year. In other words, it’s some poor lawyer who just doesn’t know better. By now, I think I’ve made clear that I don’t call witnesses, and that doing so is a mistake, but why? What’s so bad about calling someone in to testify?
First off, calling witnesses in a trial is almost always necessary, and not optional. If Switchblade Sam is on trial for murder, and Nosey Nellie was an eyewitness to him stabbing Bad Luck Bobby, the prosecutor can’t just have Nellie write a letter about what she saw and then use that against Sam. In civil and criminal trials, witnesses MUST show up. License appeals are different, and the rule governing them REQUIRES at least 3 notarized testimonial letters (my office requires 4) to be filed in each case. In other words, you couldn’t skip these letters even if you wanted to, even if your witnesses would prefer show up and testify rather than write anything. In fact, you can’t even file a case without 3 letters notarized within the required 90 days. Witnesses, by contrast, are allowed to testify at a hearing, but they are neither required nor encouraged.
For most people, gathering 4 letters can be a chore. While some of my clients can easily put together 6 or more letters, many people who have gone through the profound life changes involved in getting sober will report that part of the process involved getting rid of drinking friends and such, so that their circle of close contacts wound up shrinking in size. Many people do have a hard time just getting 4 letters, but whether a person can barely manage 4, or can easily get 8 letters, the point is their their witnesses can say whatever needs to be said in a letter, and don’t need to show up to testify. This means that, because I require 4 letters, most of my clients will have already called upon everyone they know just to get them together; there isn’t exactly a crowd leftover to call as witnesses, anyway. If the letters are done properly, they will provide all of the information needed in and helpful to a license restoration or clearance appeal. And when I say “done properly,” that means every single one of those letters has been CAREFULLY edited by me. Without fail, almost 99% of all letters I see need correcting and work, and we’re not talking grammar or spelling help, either. I make sure the letters say what they need to say, and don’t stray into unhelpful territory.
As a driver’s license restoration lawyer, a huge part of my job is reviewing and fixing the letters of support. It is rare, as in less than 1% of the time, to see a letter that’s good enough as it’s presented. This applies across the board, no matter who’s writing it, and no matter how educated or smart they are. When the letters have been made good enough for me to file, then there is no need to call the person in to say at a hearing what they’ve already said in the letter. In other words, if a letter is done right, then any testimony by the writer would be redundant, at best.
But that’s not the half of it.
Witnesses get asked questions. Not just the nice questions from the attorney who called them in the first place, but tough questions from the hearing officer. Letters don’t get asked questions. Letters don’t get confused, or nervous, nor do they forget things. Witnesses do all of the above. I could go on about this forever, but let’s look at several variations of an example that will pretty much say it all.
Assume that Dan the Driver’s mom, Mrs. Driver (MD), has been called as a witness at his license restoration hearing, and the lawyer has just finished asking her about how Dan quit drinking, and confirming, through those questions, that she hasn’t seen Dan drink since he got sober about 4 years ago. Now, the hearing officer (HO) takes over:
HO: Mrs. Driver, with whom does Dan live?
MD: With his girlfriend, Tammy.
HO: Do you know if Tammy drinks?
MD: I don’t think so. She’s never drank around me.
HO: You don’t think so, but do you know for sure? In other words, if Tammy went to a girlfriends bridal shower and there was champagne, do you have any reason to believe she wouldn’t have a toast?
MD: Well, no, I mean, I don’t know, but she is good around Dan, I know.
HO: Is there any alcohol kept in their home.
MD: I don’t think so…
HO: But you’re not sure?
MD: Well, it’s not like I go snooping around their place, but I haven’t seen any when I’ve been there.
HO: Okay. Does Dan ever go out with his friends, to something like a Tiger’s game or a Red Wings game or a concert, or anything like that?
MD: Well, sure. He spends most of his time working and at home with Tammy, but it’s not like he doesn’t ever do anything with his friends.
HO: And when he’s at those events, do you know if the friends he’s with ever have anything to drink?
MD: I wouldn’t think so. His friends all know the trouble Danny had.
HO: But you don’t know for sure?
MD: No, not for sure.
HO: What about marijuana, when is the last time Dan used any of that?
MD: I don’t think Danny ever got into drugs.
HO: Well, according to your son’s paperwork, he’s used marijuana about 6 or 7 times, the last time being about 6 years ago. You’re telling me you didn’t know that?
MD: No, I didn’t. But I know he never used any heavy drugs, or did anything regularly.
HO: Mrs. Driver, if you don’t know about your son’s marijuana use, and you’re not sure if his friends ever have a drink when he’s out with them, and aren’t sure whether his girlfriend either does or does not use alcohol, what else don’t you know?
Close your eyes, dear reader, and picture, in big red letters, the words “GAME OVER.” That’s just what happened to Dan. The example above is overly simplistic for demonstration purposes, but I could literally spend the rest of my life providing more like it and endless real-world scenarios just using Dan and Mrs. Driver. Instead of endless, though, let’s just look at 2 more. To keep things manageable, we’ll continue with the questioning of Dan the Driver’s Mom.
HO: M’am, do you know the last time your son consumed any alcohol?
MD: Oh boy, it’s been years. I think at least 5 or 6 years, because that’s when his girlfriend Tammy got pregnant.
HO: On his paperwork, your son indicated his last use was 4 years ago. Let’s see here….in your letter, you say, “…things have been much better since Daniel quit drinking on October 23, 2013.” Do you remember writing that?
MD: Yes, I guess I must have forgotten the exact date…
HO: Well, here’s my concern, m’am; you wrote that letter less than 6 months ago, and then, you knew not only the time frame Dan supposedly quit drinking, but also the exact date pretty clearly, and now you’re here and you’re not even getting the same year.
MD: Well, I’m a little nervous…
At this point, anybody in the “hot seat” is feeling stressed, and, in the real world, things tend to go south from here real fast. They seldom get better. The hearing officer, smelling blood in the water, sees an opportunity to discredit a witness. Remember, under the rule governing license appeals, it’s the hearing officer’s job to “…NOT order that a license be issued…” (emphasis added), so it’s not that he or she is being mean or unfair, but instead, is only doing what is supposed to be done.
Let’s continue:
HO: I understand that, but what I’m not understanding is how you could know the exact date, an important date in your son’s life only a few months ago, and now, you can’t even remember the year. In fact, you linked his sobriety to his girlfriend’s pregnancy, so it makes me wonder if someone didn’t give you that date and instruct you to put it in your letter.
MD: Well, to tell the truth, I did ask Danny about that, because I didn’t remember the exact date.
HO: What else don’t you remember, m’am? Are you sure about Danny’s marijuana use?
MD: As far as I know, yes…
We’ll change things up a bit here, and see how things might play out under a different line of questioning:
HO: Mrs. Driver, does your son attend AA meetings?
MD: I know he used to go, and I think he still goes once and a while, but I’m not sure.
HO: How long was your son regularly attending?
MD: Oh, for at least a couple of years; I remember, because I drove him to some of them.
(In fact, Dan attended AA for exactly a year, pursuant to his order of probation.)
HO: Well, according to your son’s paperwork, he attended AA for exactly a year, and not any longer. He also testified, before you came into the room, that he hasn’t attended any more meetings since then, back in 2014.
MD: Well, I know did he go for a while; I remember that. I’m not exactly sure on the details.
HO: Mrs. Driver, the problem is that you also submitted a letter on your son’s behalf. How do I know that the details in that letter are accurate? You claim that Dan last drank alcohol on October 23, 2013; how do you know that?
MD: That’s about when Danny quit drinking, and I asked him the date as I wrote the letter.
HO: But you don’t have any specific, independent recollection of that date, do you?
MD: Not exactly, but I know it was around then…
So here’s the kicker; if Mrs. Driver would have just NOT been called as a witness, everything in her letter would have stood unchallenged, unless it was contradicted by some other piece of evidence. There’s no other way to put this, but unless your lawyer screws up royally, that shouldn’t happen. It certainly won’t with me. This means that if even Mrs. Driver was called in and had answered everything perfectly, she would not have helped Danny’s case one single bit beyond the letter she provided. There was ZERO possible gain in calling Mrs. Driver as a witness, as opposed to just letting her letter stand on its own.
Zero possible gain. Let that sink in. Then ask yourself why any lawyer would call a witness. The only answer is that he or she doesn’t know better. Everything good thing a witness can say can be put in a letter. The ONLY thing that bringing a person in to testify does is add all kinds of risk. Of course, it takes a lot of work to get those letters right, but in my case, because I provide a guarantee to win every case I take, why would I ever consider a taking a shortcut that adds nothing positive to my case and only brings potential problems? Doing it right is what I get paid for, so when I take my client into the hearing room, it’s to win. I know what to do, and I know what not to do, and that’s why I never, ever call a witness.
Don’t ever call a witness. Let that sink in. Now, let this sink in; if you’re sober, and serious about getting back on the road, do call me. I can help.
If you’re looking to hire a lawyer to win either the restoration of your Michigan driver’s license or the clearance of a Michigan hold on your driving record, I can do that, as long as you’ve honestly quit drinking. To find out more, give my office a ring. We’re in Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST) and can be reached at 248-986-9700 or 586-465-1980. All consultations are confidential, free, and done over the phone, right when you call. We’re here to help.