Michigan Criminal Defense Lawyer Blog
Sometimes, in the course of doing whatever we do for a living, we lose sight of the fact that not everyone understands all the little details involved in our line of work. In my capacity as a Driver’s License Restoration Lawyer, the issue of a person’s eligibility to file a License Appeal is an inquiry I make multiple times every day. One look at a Driving Record, or a few quick answers from a caller, and I can tell in a heartbeat when the person will be eligible to file a License Appeal. This article will attempt to explain the timing issues of License Appeal eligibility in a clear, straightforward manner.
In the Driver’s License Restoration section of this Blog, I have tried to cover the License Appeal process from every possible angle. The issue of eligibility isn’t really about the process as much as when that process can begin.
The primary rules regarding License Revocations are actually pretty simple: If a person has 2 alcohol-related (DUI) and/or substance-abuse related convictions within 7 years, then their Driver’s License will be Revoked for a minimum of 1 year.
If a person has 3 or more such convictions within 10 years, then their Driver’s License will be Revoked for a minimum of 5 years.
That sounds rather simple, but, it should come as no surprise that it’s more complicated than that.
First of all, when we speak of a person being Revoked for a “minimum” of either 1 or 5 years, we principally mean that the person will be ineligible to even start the Driver’s License Appeal process until that “minimum” time period has passed. To put it another way, if a person has 2 DUI’s within 7 years, their License will be Revoked for a minimum of 1 year. If they wait for 5, or 10, or even 25 years, they cannot just thereafter go to the Secretary of State and have their License Reinstated. The Secretary of State will inform them that they must go through the License Appeal process, and only if they win that Appeal will they be able to be re-licensed. If they lose, then they’ll have to wait another year to Appeal again.
Thus, a “minimum” of 1 year means just that; there is no way they’ll be able to be re-licensed for at least that long. It could be longer.
The same thing applies when we speak of someone who has gotten 3 DUI’s within 10 years; they’ll have to wait at least 5 years to start the License Appeal process. Even if they wait 35 years, they won’t be able to be re-licensed until they file and win a Driver’s License Restoration Appeal.
And that period of Revocation doesn’t begin until the Courts that handled their DUI’s report those convictions to the Secretary of State. That notice is called an “abstract of conviction,” which is what the Courts, by Law, MUST send to the Secretary of State in such cases.
Just today, I received an e-mail from someone who, quite understandably, but incorrectly, related their understanding of the Law as imposing the Revocation from the date of the DUI conviction. In this person’s case, and for whatever reason, the Secretary of State did not receive word of their 2nd conviction, which occurred out-of-state in 2008, until December of 2010. Upon receipt of that abstract, the SOS Revoked the person’s License for a minimum of 1 year. Accordingly, this person is not eligible to file a License Appeal until December of this year (2011).
At first blush, it would seem that the person is being punished longer than they should be, but the fact of the matter is that, until the Secretary of State received the abstract of that 2nd conviction, their License was completely valid. In other words, they never lost their License when they should have. And while that may suck (there’s really no nice way to put this), the fact is, this person has yet to pay the penalty for that 2nd DUI. They have had a full, valid License these last 2 years or so.
There is no set process by which these errors, called “late abstracts,” can be corrected. A person can go back to the Court that handled their last case and ask to have the conviction “backdated.” In this case, since that Court is out of State, that’s really not an option. For all anyone knows, the Court did its part timely, and for whatever reason, this conviction didn’t show up on the National Driving Register.
The Secretary of State is not particularly sympathetic to these claims, because, as noted, the person isn’t really being penalized any longer than they otherwise would have been. Instead, the penalty is just taking effect later.
Within these simple rules lies a confusing world of possibilities. And in my line of work, I see them all.
One of the lesser known aspects of License Revocations involves the effect of what’s known as a “zero tolerance” violation. In Michigan, it is illegal for a person under 21 to operate a vehicle with ANY alcohol in their system. The technical name for this offense is “Person Under 21 With BAC.” If a person under 21 is found to have a Bodily Alcohol Content (BAC) of between .02 and .07, then they are in violation of this law. If their BAC is above .07, then they are, of course, subject to being charged with an OWI as a regular Drunk Driver.
This offense, sometimes called a “kiddie DUI,” has the rather little known effect of counting as a 1st offense DUI should the person ever receive a real DUI within 7 years, and also counts as a 1st Offense if they ever receive another within their lifetime (10 years for License purposes). It often comes as a HUGE surprise to a person who get their first “real” DUI to find out that their License is being Revoked for 2 DUI’s within 7 years, even though the first was really not a “true” DUI, but a “zero tolerance” offense, instead.
Likewise, most people are surprised to find, years later, that someone screwed up in the Court system and forgot to timely report a DUI conviction. Then, years later, that conviction IS reported, and the person winds up getting the License Revocation they would have been long past had someone not dropped the ball.
Another area of misunderstanding is the effect that a Driving While License Suspended/Revoked/Denied (DWLS and DWLR) charge has on a person’s eligibility to pursue a License Appeal. In the next article, we’ll explore that issue.
For now, we can at least leave this discussion with the simple rule that a person’s License will be Revoked for a minimum of 1 year from the time the Secretary of State receives notice of a 2nd DUI conviction within 7 years of the first such conviction. Michigan Law requires that a person’s License be Revoked for a minimum of 5 years from the time the Secretary of State receives notice of a person’s 3rd DUI (meaning alcohol-related or substance abuse-related) conviction within a 10-year period. As we have seen, the date of such conviction and the date the Secretary of State receives notice of any such conviction aren’t the same, and in some cases can, unfortunately, be years apart.