Michigan Criminal Defense Lawyer Blog
In order to win a Michigan driver’s license restoration or clearance case, you have prove that you haven’t had a drink for a legally “sufficient” period of time, and that you have ability and commitment to remain alcohol-free for good. What’s “legally sufficient” will vary from case to case, and we’ll explore that within this article, along with why the first and most important question my office asks any caller is “when is the last time you consumed any alcohol?”
Under Michigan law, a person who has lost his or her driver’s license as the result of multiple DUI’s is automatically and completely disqualified from winning a restoration appeal if he or she has consumed any alcohol whatsoever in the past 6 months. That, however, is completely misleading, because, as a practical matter, there is simply NO WAY to win a case if a person has consumed any within last 18 months, and even that’s not enough in many cases. More sober time is always better.
The key to winning a license appeal is showing that you have been alcohol-free for that “sufficient” period of time (we generally require at least 18 months’ of sobriety before filing) and that you are a safe bet to never drink again. To the Michigan Secretary of State, anyone convicted of multiple DUI’s is considered too risky to let drive again, until and unless he or she can show they have given up alcohol for good. This means proving one’s self genuinely sober.
There is a simple proposition underlies everything about the Michigan driver’s license reinstatement appeal process: people who do not drink are ZERO risk to drive drunk. No matter what else a person may think or feel about the whole license revocation thing, or the process one must go through to get it back, the notion that people who don’t drink also don’t drive drunk is beyond dispute.
Accordingly, the Michigan Secretary of State has decided that the only people can win a license restoration case are those who can prove that they’ve quit drinking, and have been alcohol-free for a long enough period of time, and who can also show they’re unlikely to ever drink again.
In a recent 2-part article, I explored how and why anyone who still drinks alcohol, or even thinks they can ever drink again, cannot win a license appeal. It comes down to the idea that a person is unlikely to ever drink again. It makes sense, when you think about it; a person who does not believe he or she can ever safely indulge is far less a risk to “pick up” than someone who still thinks that might be possible.
In addition to that, in the last pair of articles in the driver’s license restoration section of this blog, I explored how that plays out in the context of a sober lifestyle – something a person must also be able to demonstrate in the context of a license appeal. I strongly suggest the reader check those out.
Here, the point to be made is that the state’s entire approach to license restoration and clearance appeals is to screen out anyone who still drinks, thinks they can still drink, or who otherwise hasn’t made the life changes to support permanent sobriety.
This is why the single most important question we ask is “when is the last time you had a drink?”
Now, before any reader with a devious mind gets to thinking that the this article serves as some kind of advice or warning about how to answer that question, let me be crystal clear: that won’t work. Moreover, our practice is 100% NOT interested in dealing with anyone who would even try lie about this.
That said, we are always willing to speak with anyone to help them tip the scales in favor of a decision to quit drinking. This can set up a winning license appeal down the road, when enough sober time has been accumulated. However, we only take cases and guarantee to win licenses back for people who have honestly gotten sober.
Remember, the whole point of the Secretary of State’s license appeal process is to investigate whether this is true, no matter what a person says. In other words, it’s really easy to say you haven’t had a drink for a certain period of time, but you have to prove it, and you do that by being truthful. The whole process is set up to filter out false claims of abstinence and/or commitment, and look for genuine markers of real sobriety.
This isn’t some namely-pamby statement made just for the sake of appearances, either.
The main job of the Secretary of State hearing officers who decide these cases is to carefully examine the evidence in each case and ask the kinds of questions to weed out those who really have quit drinking from everyone else.
As it turns out, a lot of people file license appeals despite not having quit drinking and think that they can somehow BS their way through this.
Good luck with that.
This goes way deeper than the hearing officer; the main rule governing license appeals starts by explicitly instructing the hearing officer to say “no” to every appeal. As written the rule requires at the person who files the appeal to present “clear and convincing evidence” persuasive enough to change the hearing officer’s mind and convince him or her to say “yes.”
This is really important, because in most legal proceedings, a person starts out with the scales of justice evenly balanced. In a criminal case, a person starts out with a presumption of innocence. License appeals are different.
The written law directs that in a driver’s license restoration case, the hearing officer should NOT grant the appeal, unless the person proves the legal issues by what the rule defines as “clear and convincing evidence.” Let’s look at the actual language of the main rule (Rule 13) governing license appeals:
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.
V. Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.
It’s really the first 2 issues specified in section “i” that are the most important. The reason for that requires a little explanation: Under Michigan’s drunk driving laws, anyone convicted of 2 DUI’s within 7 year, or 3 within a lifetime is categorized as a “habitual alcohol offender.”
The law also presumes, as a consequence, that any habitual alcohol offender who has racked up 2 DUI’s within 7 years, or 3 within 10 years has a drinking problem.
Observant readers may note that there is a key distinction here, because the DUI (criminal) law and the license appeal law differ with respect to the presumption the time frame.
Under the criminal OWI law, a 3rd DUI in a person’s lifetime is considered a felony. However, if that 3rd DUI isn’t within 10 years of the 1st, then he or she will not suffer the same 5 year license revocation that applies to anyone who picks up a 3rd DUI within 10 years.
This is really only applicable in a small number of cases. What really matters for most anyone contemplating a license appeal is when he or she is eligible, based on having either 2 DUI’s within 7 years, or 3 within 10 years.
If either of those things are true, then the person is presumed, by operation of law, to have an alcohol problem. In practice, this means you can forget about the “if any” language within the rule, because it doesn’t apply.
In other words, as a result of being labeled a “habitual alcohol offender,” a person is also presumed to have an alcohol problem. Therefore, within the context of a license reinstatement appeal, he or she must prove that his or her drinking problem is both “under control” (meaning that he or she has been alcohol-free for that “legally sufficient” period of time), and that it is “likely to remain under control” (meaning that he or she is a safe bet to never drink again).
We’ll stop here for now. In part 2, we’ll pick up by examining the important and practical implications of being labeled a “habitual alcohol offender” within the context of a driver’s license appeal.