Michigan Criminal Defense Lawyer Blog
This will be a short article to clarify one simple point: that you need to be done with probation (or parole) before you can win back your driver’s license (or, if you now live out of state, win a clearance) from the Michigan Secretary of State. This is an issue that comes up multiple times every week among those who call my office looking to restore their driver’s license. There are, of course, some exceptions to this. We’ll get to them shortly, because if there weren’t any, then we’d have no need to go much beyond the first sentence of this paragraph.
First, it helps to understand why the Secretary of State requires a person to be off probation or parole. Being under legal supervision is perceived as “living in a controlled environment,” meaning that the person is NOT free to have a drink if he or she wants, simply because he or she has been ordered to abstain, with the threat of some kind of punishment hangin over his or her head for violating that order. This is more obvious when a person is still on probation for his or her last DUI and is either being tested, or at is least subject to testing, for alcohol and/or drugs. However, even if a person is not tested regularly, or at all, he or she is still under a court or parole board order to not consume any alcohol.
If a person gets caught drinking in violation of a probation order, he or she can be sent to jail. To the Secretary of State, this means that for as much as the person can prove they haven’t had a drink for X amount of time, he or she cannot also prove that his or her abstinence while on probation (or parole) was completely voluntary. In order to win a license appeal, the state wants to see time where a person chose to not drink without any threat of legal sanction, even though he or she easily could have.
I realize that plenty of people will try and argue that they could easily get away with some drinking while on probation (or parole), but that argument doesn’t fly with the Secretary of State. What matters in the context of a license appeal is that probation (and parole) imposes a clear legal obligation to abstain from drinking.
It is this legal obligation that creates the “controlled environment.” It’s easy to understand a controlled environment when someone is in jail or prison, but simply being under threat of incarceration for drinking is enough for the state to consider a person’s living environment “controlled.”
This makes sense when you understand that what matters is proving that his or her abstinence is “voluntary.” Sure, a person can argue that he or she truly “chose” to not drink anymore, but to the extent that for any part of that time he or she could have gotten in trouble and locked up for drinking, it makes it exceedingly difficult to prove that any such period of abstinence was entirely voluntary. Although some readers will want to point out how that is not or was not the case for them, it doesn’t matter.
This all means that a person must be able to prove a sufficient period of voluntary abstinence in order to win a license appeal case. Now, let’s look at some exceptions to that…
First among them is sobriety court. Despite everything I’ve just explained, the law provides that abstinence from alcohol while in a sobriety court program counts as voluntary abstinence. That’s true even though sobriety court rules prescribe automatic jail for anyone who consumes alcohol. This gets more complicated than it needs to be the more we try to make sense of it, but the simple fact is that the written law was changed to hold that sobriety court time is voluntary abstinence. This flies in the face of the way the Secretary of State normally interprets things, but the legislature made sure to overrule that by writing it specifically into the law.
The reader should not struggle to find some consistency here, because there isn’t any. Instead, simply accept the fact that if you pick up a 2nd offense DUI and are put on probation for 2 years, and even if you don’t drink from the day of your arrest, none of that time counts as “voluntary” until you are discharged from probation. Period. However, if you pick up a 2nd offense DUI and go into sobriety court for 2 years, all of the time you spend in it, on probation, counts as voluntary abstinence.
Another kind of exception arises when a person has quit drinking for some time, then picks up a new, unrelated offense, and winds up on probation again. Imagine that Sober Sam had his last DUI over 5 years ago and hasn’t had a drink since. His probation for the 2nd offense DUI ended over 3 years ago, but recently, both he and his next-door neighbor were charged with disorderly person over a property dispute that got a bit out of hand, and he is currently on probation for that. Even though he is under order to not drink, this kind of situation could be seen as an exception to the “controlled environment” issue, particularly because Sam did accumulate some real voluntary abstinence after his DUI probation ended, but before he got placed on probation for his current offense.
There are no real clear guidelines to what would count as an exception, and, in my office, we look at each case individually. Here is where my guarantee becomes kind of a 2-way tool. Sure, I’m in business to make money, but the bottom line is that I guarantee to win every case I take, so if I don’t win it the first time around, then I’m stuck doing it all over again, for free, next time. Since I earn my living winning these cases the first time, and not by doing warranty work, when someone calls us about taking their case, we’re never overly tempted to “sign them up” too soon.
With a guarantee, the potential client is protected from forking over his or her money to some lawyer who doesn’t have as much on the line, or does not know better. This all means that when we examine a person’s situation, we will be as accurate as we can about if and when they can move forward. I don’t want to lose a potential client, but I don’t want to double my workload for half the money, either.
To be clear, I have won many license cases for people who were still on probation. That said, none of them were on probation for his or her last DUI. Even sobriety court people must be finished with probation before they can win their full license. If you are still on probation, the best way to find out when to move forward is to contact my office so we can ask some questions and figure out your situation. When you’re ready, I can get you back on the road, no matter where you live, guaranteed!
If you need to win back your Michigan license or get a clearance of a Michigan hold on your driving record and are looking for a lawyer, do your homework. Read around. Ask questions, and give my office a ring. We’re really nice people, and all of our consultations are done over the phone, right when you call. We’re here to help Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST), and can be reached at 586-465-1980.