Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began examining an appeal for a “full” Michigan license, and how a person gets off the interlock after having initially won his or her driver’s license restoration case. We noted that simply not losing your restricted license in the intervening year(s) isn’t anywhere near good enough to win back your full license, and that there’s a lot more to this than just coming back and asking for it. Most people (I estimated more than 80%) will experience a “glitch” or two on the interlock device while using it, and those issues will have to be addressed at the hearing for a full license, even if none of them results in a formal ignition interlock violation. We noted that, just as in a first-time license appeal, every hearing officer is different, and that some have more patience than others, the flip side being that some are more prone to “violation fatigue” and begin to shut down when a person shows up with an final ignition interlock report that has too many “glitches” for his or her liking. We’ll pick up in this second part right there, at the point where a person shows up at his or her full hearing with an final report that has more “violations” than the assigned hearing officer is willing to excuse.
This is somewhat unfortunate, because some people are just plain luckier than others. I’ve seen cases where people have had a real tough time with the interlock unit, but were also firmly committed to their sobriety. Some people wind up getting a faulty unit and have nothing but trouble, while others never have any kind of difficulty with the machine. There is, no matter what else, an element of luck to all of this. In fact, it is rare for a person to make it a whole year without at least a glitch or two along the way. One of the big problems is that not every glitch results in a formal violation, so when an incident occurs, and as long as the car starts again, or something like that, a person may have figured everything is fine – until they get to their full license hearing.
Let’s look at a common, real world example of this: Lots of people will have a positive breath test result at some point, either at start-up or while driving (rolling retest). The notice of interlock use in the back of a winning order and interlock companies’ instructions advise that, when this happens, a person rinse out his or her mouth and promptly try again. When someone who is and has been stone-cold sober for a number of years blows into the machine and sees a positive result, what crosses his or her mind is usually something like, “WTF?” The person knows he or she hasn’t been drinking, so when they rinse and/or try again a few minutes later and the test comes back negative, they figure all is well, and their innocence has been proven. They forget the instruction in the notice of ignition interlock use to get a PBT or EtG test, and, because they were able to provide a clean sample, assume all is well.
Until they wind up sitting in front of the hearing officer with the least patience for this. If it only happened once, or even (maybe) twice, it might slide, but if, over the course of the person’s tenure with the interlock, he or she ran into more than a couple of issues, and although he or she never drank and is deeply committed to his or her sobriety, this hearing officer is the most likely to NOT grant a full license. While it is always an option is to continue the person on a restricted license in any such case, these hearing officers are also not beyond revoking all driving privileges, particularly the one with the least patience for multiple interlock glitches. That’s a pretty tough outcome for someone who has been completely alcohol-free, and whose biggest mistake was to not thoroughly read and follow the interlock instructions. Worse yet, there could be a very different (and better) outcome merely if the same case was assigned to a different hearing officer. There is a lot to this, but the takeaway here is just that it happens, and certainly stands in stark contrast to any idea that going in for a full license is somehow easy. If anything, this highlights the critical role of proper case management and planning. We need to prepare for every scenario, and that means preparing for the possibility of any of the hearing officers.
No matter who the hearing officer or how good (or bad) the final interlock report, the evidence in each “full” license appeal is going to be examined for consistency with the evidence provided in the first case. For sober people, this really isn’t too hard, but for some scammer who may have gotten lucky the first time, it sure will be. Not that long ago, I got an email from someone whose case I originally declined because I knew he was drinking. It turns out that he somehow managed to fool the hearing officer who is so big on the proper interlock use and won a restricted license for himself. Having managed to get by on the interlock for a year, he wondered if I would help him go for his full privileges, figuring that the fact that he won might make me change my mind. I declined again for ethical and moral reasons, also because it’s just a fact that it is always easier to remember the truth than it is a web of lies and BS; I can only wonder how the guy did. Whatever else, I’m glad I had no part in it. And while we’re on this topic, I should note that I’ll get into the whole sobriety thing in more detail in an upcoming article, and discuss a case I recently turned down on behalf of someone who had been my client the first time around, but who admitted that since he won his license, he started. drinking again.
At this point, the reader may well be wondering if there isn’t some kind of inconsistency in what I have said thus far, having begun by pointing out that winning your full license involves more than just completing your time on the restricted license with the interlock, then making a quick point that the state wants to see that you’ve grown in your sobriety, and thereafter having focused almost exclusively on interlock problems. Thus far, that conclusion wouldn’t seem too far off the mark. The truth is that the interlock is always at the center of “full” license appeals. Poor performance with the interlock while on the restricted license, whatever the cause(s), is pretty much a deal-breaker. I’ve made clear that even genuinely, hardcore sober people who just happen to have bad luck and/or a tough time with the machine can run into a brick wall if they’re case is assigned to a hearing officer who is more quickly overcome by violation fatigue. One hearing officer may be willing to sit through a bunch of explanations about what happened for a number of positive tests, while another may kind of “tune out” much earlier on. Even the most patient hearing officer, however, isn’t going to be much inclined to examine the details of your commitment to sobriety if your interlock report is a complete disaster. Just making it over the hurdle of an acceptable final interlock report will not, by itself, get you to the finish line; therefore, you have to at least make this jump just to be in the race.
The “race,” in the context of a Michigan driver’s license restoration appeal, is to prove (again) the two main legal issues: First, that your alcohol problem is “under control,” meaning we can fix a sobriety date, and second, and even more important (especially as you go for a full license), that your alcohol problem is “likely to remain under control,” meaning that you can show you have both the commitment and the tools to remain alcohol-free for good. As with an initial restoration appeal, you must prove these things by what is called “clear and convincing evidence.”
At the outset of part 1 of this article, I mentioned that the state will expect a person to have grown in his or her sobriety over the period with the interlock, and while that is certainly true, you can expect every hearing officer to do a little detective work beyond that and make sure all the dates and everything from the first appeal is consistent with everything in this one. “Everything,” as used here, is not some throwaway catchall phrase I used in haste, either. Within the more specific setting of a “full” license appeal, a hearing officer may look to old letters of support and compare the to the new letters, not just to make sure the dates line up, but also to get a feel for who the letter writers are and what they’re saying. Imagine that Tipsy Tina submits 4 letters for her full appeal all written by different people than wrote in her first case, where her letter writers were her husband, best friend, mother and a co-worker. In the new case, she doesn’t have a letter from any of them, but instead has letters from a neighbor and a few different co-workers, none of whom are as close to or familiar with her as here former letter writers.
It wouldn’t be the first time that someone has started drinking again and has lost the support of people who will no longer vouch for them. On the flip side, though, I have been asked by numerous clients if it’s okay to use any or all of the old letter writers, meaning that the person wondered if doing that was some kind of “no-no.” In this way, a purely innocent lack of understanding could inadvertently raise the hearing officer’s suspicion. I suppose if there’s a subtle lesson here, is that one is best guided through this by competent counsel, like me. I know that I bring more than just “experience” to the table when it comes to these second appeals; my familiarity with the hearing officers allows me to understand the first appeal, and how it will be viewed by any of them as they look it over it in preparation for the “full” license hearing. This, in turn, allows me to guide the next case to insure a win.
Of course, all of this assumes my client has remained sober. Sobriety is the key to everything. It’s how you win your license back in the first place, and it’s the Secretary of State’s first and primary concern at all phases of the license restoration process. In a full appeal, you’re essentially asking to have the leash taken off, so the state needs to be sure that your sobriety is likely to last FOREVER. It’s not that you won’t pick up a drink this year, or next, but also 10, 15 and even 25 years down the road. A perfect ignition interlock final report does nothing to address whether you’ll stay sober for the rest of your life; it just says you weren’t trying to drive after drinking for the previous year or so. That’s why, just as in a first appeal, we have to take our time and make sure we procure a good substance abuse evaluation, and that the letters of support are properly done, as well.
In this way, everything in the full license appeal must stand on its own, but must also stand as consistent with the first appeal. Having won a restricted license is, of course, THE prerequisite to winning a full license, but it is not enough. It’s what opens the door, or, as I said earlier, what gets you in the race. The issues I’ve examined above are the most common and certainly the most important part of winning back your full license, but there is, of course, more to the process. If there are a few, simple take-aways from this article, it’s that, as always, sobriety is key; there is nothing without it. A good interlock report is also important, but as I noted, there are “issues” of some sort or another at least 80% of the time, so it’s just one factor to be considered by the hearing officer. The number of “glitches,” (or, as we learned, improperly-termed “violations”) is another factor, as well. Each such situation will have to be explained in detail, and depending on the hearing officer, perhaps in painstaking detail. The hearing officer to whom your case is assigned plays an important role in how things turn out. Finally, and even if a person comes back with a perfect ignition interlock report, the evidence submitted for a “full” license appeal must be consistent (enough) with what was turned in the first time around. Those, and a million other little things will catapult you into the winners circle, where you’ll finally slide a new, shiny driver’s license (with your picture on it) back into your wallet.
This is my world. If you’re sober, I can get you back on the road, an am here to help. You can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 248-986-9700 or 586-465-1980. I try to make this as convenient and easy as possible, and I start by doing all of my consultations over the phone, right when you call.