Michigan Criminal Defense Lawyer Blog
As Michigan driver’s license restoration lawyers, we hear a lot of the same things over and over again, like how badly people need a license, or how they haven’t been in trouble for a long time. In this article, I want to explain why merely staying out of trouble is far from enough to win a driver’s license restoration or clearance appeal, specifically because the main focus in these cases is on a person’s relationship to alcohol (and drugs), both past and present. We’ll examine this in detail, below the short video from the “2 Minute Legal” playlist of my Youtube channel:
The key to winning a license appeal is proving that you have been alcohol and drug-free for a legally “sufficient” period of time, and are a safe bet to never drink or use drugs again. To put this another way, the state’s first and primary concern about anyone who files a license appeal is that there has been a long enough period of time since his or her last drink (and/or last drug use), and that the person has the ability and commitment to remain alcohol (and drug) free for life. Not having been in any kind of legal trouble is completely irrelevant to that.
In fact, our office is regularly contacted by people whose last brush with the law was 5, 10 or even 20 or more years ago, often at the time of their last DUI. After essentially saying something that amounts to “that’s nice,” we then go on to ask how long it’s been since their last drink (or use of any drugs), because that is the main inquiry the state is going to have. And to be clear, “drugs” includes marijuana, whether used medically or recreationally.
The entire license appeal process is handled by and through Michigan Secretary of State. Each case is decided by a hearing officer, who does so by applying Michigan’s driver’s license rules from the Michigan code. Some of the specific requirements of these laws are clear on their face, while others are neither clear, nor even included in the written law.
Let’s take a look at some of most relevant parts the main rule (Rule 13), below:
Rule 13
(a) The hearing officer shall not order that a license be issued to the petitioner
unless the petitioner proves, by clear and convincing evidence, all of the following:
(i) That the petitioner’s alcohol or substance abuse problems, if any, are under
control and likely to remain under control.
(ii) That the risk of the petitioner repeating his or her past abusive behavior is a
low or minimal risk.
(iii) That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2 (c), (d), (e), or (f) of the act is a low or minimal risk.
(iv) That the petitioner has the ability and motivation to drive safely and within the law.
Here’s the quick and easy, plain-english breakdown of what that means:
(a) The hearing officer says “no” to every appeal unless the person proves the following by clear and convincing evidence:
(i) That the person hasn’t had a drink or used any drugs for a sufficient period of time, and is a safe bet to NEVER drink or get high again
(ii) That there is a low to minimal risk that the person will ever drink or get high again
(iii) That there is a low to minimal risk that the person will ever drive after drinking or getting high
(iv) That the person is likely to drive safely and obey all traffic laws
Note that there is nothing in the rules about having “stayed out of trouble.” A person could stay out of trouble for 30 years, but if he or she is still drinks (or gets high), then any license appeal case he or she files MUST, by law, be denied.
Of course, getting in trouble doesn’t help a license appeal, either. In fact, the rules are generally interpreted to prohibit granting a license to anyone who is still on probation or parole – although, the day before this article was first written, we were informed that we won a somewhat exceptional case for a client who is still on probation!
However, we’ve had tons of people who have won their licenses back even though they have gotten in trouble since their license was revoked.
The most common reason a person has winds up in some scrape with the law after having his or her license revoked for multiple DUI’s is that they get caught driving. When that happens, the first order of business before filing any appeal is to make sure that the legally mandated additional period of revocation that gets tacked on to their license has already passed. If so, then we can determine how long beyond that, if at all, they should wait to moving forward with an appeal.
Let’s look at a couple of hypothetical situations to illustrate how how staying out of trouble, by and of itself, isn’t that important in the context of a driver’s license restoration case:
Assume that Outlaw Ollie had 5 DUI’s in his past, with his first in 1987, and his last in 2003. On the date of his last DUI arrest in 2003, Ollie had finally had enough, and decided to give up drinking for good. He did some AA as required by the court, but quit going years ago.
Nevertheless, Ollie has remained alcohol-free and sober since 2003. Although he has been sober, Ollie has also had 5 DWLS/DWLR convictions since 2003 (his last was in 2014), and, in addition, was convicted of Larceny from a Building – a felony, back in 2012.
The larceny charge came about because Ollie had a dispute with his brother-in-law over a loan that he had made to him some years before. Ollie went to his brother-in-law’s place of business, and, after demanding payment, only to be given nothing for the umpteenth time, he unplugged his brother-in-law’s office computer, monitor and printer and took them to his home.
When the police showed up at his house, Ollie explained what happened, but later learned that what he did constituted a crime, and wasn’t any kind of self-help “repo,” as he had thought of it. There was no alcohol involved in that incident.
Ollie is nowhere near able to say that he “hasn’t been in any trouble” since is last DUI arrest, but given his sobriety, I would take his case in a heartbeat, and remember, my office GUARANTEES to win every first time driver’s license and clearance appeal we accept.
Let’s next look at Sippin’ Sally, who lost her license after her 2nd DUI back in 2008. Over the course of the last 12-plus years, she had not been in any trouble whatsoever, and is adamant that she has not driven a vehicle even once since her license was revoked.
When asked, though, Sally admits that she still drinks, as she puts it, “every once in a while.” When pressed further about the last time she indulged, she recalls having had a glass of wine with dinner at her sister’s birthday dinner about 2 weeks before.
For Sally, it’s game over. Not only does she lack enough clean time, Sally has no real idea about sobriety in the first place.
Even if Sally offered to pay us double the fee to take her case, and even said she’d waive our guarantee, I still wouldn’t touch it.
Remember, the main inquiry in a license appeal is whether a person has quit drinking and is likely to “stay quit.” Once the reader understands why, this will all make a lot more sense.
Under Michigan’s DUI laws, anyone convicted of 2 DUI’s within a 7 year period or 3 DUI’s within a 10-year period is categorized as a “habitual alcohol offender,” and will have his or her license revoked for life, and can only appeal as follows:
After 2 DUI’s within 7 years, a person must wait at least 1 year to file an appeal. To be clear,, the state’s rules allow the hearing officer to require more than a year of sobriety, and they all do. Nobody gets his or her license back in a year.
As a result, our office won’t generally consider taking a case for a person who doesn’t have at least a minimum of 18 months’ sobriety.
After 3 DUI’s within 10 years, a person must wait at least 5 years to file an appeal.
Part and parcel of being designated a “habitual alcohol offender” is that a person is also presumed to have a drinking problem. This directly affects how the license appeal rules are interpreted and applied.
In the real world, it means that the state has effectively drawn a line in the sand and decided that the only people who will ever get their licenses back after losing it for multiple DUI’s are those who can show both that they haven’t had a drink (or used drugs) for that legally “sufficient” period of time (minimum of 18 months) AND that they have the ability and commitment to never drink (or use drugs) again.
Whatever else, people who don’t drink are precisely zero risk to drink and drive, and people who don’t use drugs are zero risk to ever drive while high, or impaired. The law is clear that these are the only people who can win back their driver’s licenses, and that’s exactly how the hearing officers apply it.
The takeaway here is that sobriety is the real key to winning a license appeal. Of course, when all is said and done, it’s better to be sober and also NOT have been in any trouble since one’s last DUI, but we can usually work around the trouble part.
By contrast, without sobriety, a license appeal case is DOA (dead on arrival).
If you’re looking for a lawyer to help you win back your license, or clear a Michigan hold on your driving record so that you can get a license in another state, be a good consumer and do your homework. Read around. See how lawyers explain the license appeal process, and how they explain themselves.
When you’ve done enough of that, start checking around. All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST), at either 248-986-9700, or 586-465-1980.