Michigan Criminal Defense Lawyer Blog
Beneath all the evidence and legal issues that make up a Michigan driver’s license restoration case is an actual person. In the previous article, I made clear that while being sober is a necessary prerequisite to being successful in a license appeal, being able to prove that sobriety is what’s really necessary to win. As I noted there, you have to genuinely be sober in order to prove it, and there’s more to proving it than just saying so. In essence, proving sobriety comes down to summarizing some of the more important points of your recovery story.
I often point out that one of the dangers of any “do-it-yourself” case, or going with some lawyer who doesn’t concentrate in this field, is that it’s so easy to miss any of the many technical requirements – something I often call “a million little rules” – that govern license appeals, While understanding the rules is necessary, the way to really win a case is to plug the details of a person’s transition from drinker to non-drinker into the legal framework they create. No matter what, every sober person has a very real recovery story, whether they know it or not.
This goes much deeper than all the technical and legal stuff. Anyone who has honestly quit drinking knows that there’s a lot more to it than merely “quitting.” The changes a person makes when eliminating alcohol from his or her life are profound. Even though many people have never thought of their journey to an alcohol-free life as any kind of “story,” it certainly is. Our job, as driver’s license restoration lawyers, is to sit down with our clients, ask the questions that draw out the details of that experience, and then fit them into the template of a winning case.
Of course, you can’t prove what’s not true, meaning that you can’t prove that you’ve quit drinking if you actually haven’t quit drinking, but there’s a flip side to this, as well: Just because a person really has quit drinking doesn’t mean he or she can actually prove it. There are endless examples of things a person would have difficulty proving he or she doesn’t do, even though they actually don’t. Imagine someone being asked to prove he or she doesn’t talk to themselves when alone; what could they do to prove otherwise? Even if they shot 100 videos showing themselves alone, all that would prove is that on those occasions, they didn’t talk out loud.
In fact, the day before this article was written, I received just such a contact (I’ll reprint it below), and that made me think that neither this person nor their lawyer understood simple but profound implication of a key passage in the main license appeal rule: “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…” Although it seems straightforward, this wording is very easy to overlook, or not fully understand – except by lawyers, like us, who concentrate their practice in license restoration and clearance cases.
It is simply not possible to over-emphasize the central, critical, and foundational role of sobriety in a driver’s license appeal. Think of a license restoration case as a wheel, like on a bicycle: Assume that the outer part – the tire- is the equivalent of the actual driver’s license. Next, think of every piece of evidence – from the substance use evaluation (SUE), to each letter of support, to the request for administrative review – as a spoke, and then think of every other part of the process as additional spokes. What do they all connect to? The hub. In the case of a license reinstatement case, the hub IS sobriety, because without it, nothing holds together, and there is no wheel.
I explained that the refusal to submit to a PBT is only a civil infraction, and is very different from the refusal to submit to a chemical test as contemplated by Michigan’s Implied Consent law. If a person refuses a PBT, he or she only faces a fine and a penalty of 6 points on his or her driving record. In the real world, my team and I almost always negotiate the dismissal of a PBT charge as part of the resolution of an OWI charge. Although a person is legally “obligated” to take a PBT test, the failure to do so does NOT carry any potential suspension of his or her driver’s license.
At its most basic, Michigan law requires any driver arrested for an alcohol-related traffic offense to submit to a chemical test when requested to do so by a law enforcement officer. Technically, a “chemical test” can be conducted on either a breath, blood or urine sample. In DUI cases, urine tests are largely useless, so they’re never really an issue. Although the officer (or trooper or deputy) can choose to request either a breath or blood sample from someone arrested for a DUI, most (but not all) of the time, a breath test is requested first, instead of a blood sample.
We recently were hired by someone who indicated that they had found some other lawyer who was charging less than us (not a surprise), and who also had some kind of guarantee. What made the client go with us, however, is that the other attorney did NOT recommend a specific substance use evaluator for her to see. Neither did that lawyer require require a meeting with the client before the evaluation to prepare her for it, something we do in every case. We also give specific documents to our clients to provide to the evaluator (although now, given the virtual nature of how things are being done, we email them directly to her).
This inevitably devolves into a variation on a theme I examine regularly: People are much more attracted to what they want to hear rather, than what they need to hear. While understandable, that’s a huge vulnerability that makes an otherwise rational person susceptible to getting fleeced into paying some lawyer for a result that sounds too good to resist, but just isn’t going to happen. This kind of misinformation is what drives so many weight loss programs, house-flipping schemes, and fitness crazes du jour.
The fact that a person hasn’t had a license for a long time is a complete non-issue as far as license appeals go. There are exactly 2 temporal elements that matter in the context of a license restoration or clearance case: first, that the person’s period of revocation has run, and second, that the person has been sober for a “legally sufficient” period of time. Although the length of required sobriety can vary from case to case, in our practice, we generally require our client’s to have a minimum of 18 months’ clean time before we’ll move ahead with a driver’s license restoration or clearance case.
For everything I can and will say on this subject, it really comes back to the simple principle of treating others as you would wish to be treated. There are certain times in life when you have no choice but to put your trust and well-being into someone else’s hands, and when that happens, you can only hope that person will put his or her heart and soul into the job and look out for you like they’d look out for their own family. We always feel that responsibility when someone puts their trust in us, and we absolutely pour our hearts and souls into the work we do.