Michigan Criminal Defense Lawyer Blog
There are really 3 principal reasons why a Michigan driver’s license restoration appeal before the Secretary of State’s DAAD (Driver Assessment and Appeal Division) gets denied. In this series of articles, I want to look at each one, in turn. I’ll begin, in this first installment, by providing a brief overview of the Michigan license appeal process and looking at few common, small mistakes that often doom any chance of having your license reinstated before an appeal even gets off the ground. These installments will be summary in scope, but for anyone interested in more analysis, there are numerous, longer articles in the driver’s license restoration section of this blog and on my website exploring each of these topics in far greater detail.
If your license has been revoked for multiple DUI’s, then you cannot file for either restoration (sometimes called “reinstatement”) of your driving privileges or a clearance of the Michigan hold on your driving record until you become legally eligible. A person with 2 DUI convictions within 7 years will have a 1-year revocation of his or her license. Thus, you cannot apply for a license appeal until at least 1 year has passed from the date of your original revocation. To be clear, even if you just “wait” 30 years, the only way to get your license back is to go through the restoration process. For my part, I guarantee that I will win any license appeal case that I file, but I absolutely require that a person has really and truly stopped drinking before I will take his or her case. Sobriety is the first and most important requirement in a Michigan driver’s license restoration case.
It is important to understand is that 1 year is not some kind of “magic number,” because the Secretary of State (SOS) generally requires that a person be able to prove a period of “voluntary abstinence.” This means that you must be off of probation or parole in order to be able to prove that you have abstained from drinking voluntarily, since the DAAD does not count any period of time when you were under court (or parole) order to not drink because getting caught violating that order subjects you to punishment. This is a simple, but unpleasant reality; if you are put on probation for 2 years after a 2nd DUI, you don’t even begin to accumulate any “voluntary” abstinence until your probation has ended. How long do you have to wait? It depends, really, and I a proper determination can only be made on a case-by-case basis.
Anyone with 3 or more DUI convictions in a 10-year period will have to wait at least 5 years from the effective date of the revocation to begin the license restoration/clearance process. There is no way to shorten this period, and if you pick up any driving infractions during your period of license revocation, the revocation itself will be extended for either another identical period (called a “like” mandatory additional) of either 1 or 5 years. Accordingly, really being “eligible” means more than just being legally eligible to file license appeal documents with the state.
The formal license appeal process is started by filing the required documents with the Secretary of State, including a current substance abuse evaluation, which will be the subject of your next installment, and letters of support, which we’ll examine after that. Michigan residents, and any non-resident who wants any kind of real chance to win a clearance, will thereafter appear for a live, in-person hearing where testimony will be taken. We’ll wind up this series by looking at the hearing itself.
Out of state residents can seek a clearance through an abbreviated process called an “administrative review.” Instead of having to come back to Michigan for a hearing, their appeal is decided on the basis of the documents submitted. 3 out of 4 such appeals filed every year are denied, meaning that only 1 out of 4 ever win. These are all-around losing propositions, and I don’t bother with them. Even so, examining the reason 3 out of 4 of these “administrative reviews” lose can help us understand the real “meat and potatoes” of a Michigan license appeal. After all, there has to be a reason behind all of this paperwork and the general complexity of the license restoration process…
To win restoration or reinstatement of your Michigan license, or to obtain a clearance of the Michigan “hold” on your driving record that prevents you from obtaining or renewing a license from another state, there are two main things that you need to prove, and prove by what is called “clear and convincing evidence.” First, you must prove that your alcohol problem is “under control,” and next, that your alcohol problem is “likely to remain under control.” We’ll address those issues more closely in the following sections, but key here is that the evidence you submit must be “clear and convincing.”
If a hearing officer reviewing the documents submitted in an administrative review has a question, because the person is not there to answer it, then his or her evidence is, understandably, not “clear.” Think about it; if you get an assignment and you have a question about what to do, or how to do it, or what some word or term means, and you cannot ask the question, much less get an answer, then the assignment, or at least the part you don’t understand, is not be clear. In a regular license appeal hearing, the whole time is spent sitting before the hearing officer answering questions. Not being there to answer questions or explain your situation is a huge disadvantage. Similarly, not being able to give a satisfactory answer to one of the hearing officer’s questions is a disadvantage that will cost your appeal…
We can boil all of this down rather simply; the Secretary of State wants to make sure that you’ve stopped drinking (i.e., that your alcohol problem is “under control,”), and that you have the commitment and tools to not drink anymore (that your alcohol problem is “likely to remain under control”). In short, winning a license appeal is all about sobriety.
While there can be no skipping over any of the legal requirements in order to win a license appeal, it must be remembered that all of these legalities provide the framework within which the story of your recovery must be fit. In other words, a license appeal is the tale of how you got sober, cast in proper legal terms. I bring more to the table than just being a license restoration lawyer, however. Beyond “understanding” recovery and sobriety, I formally study it, at the post-graduate, University level. I know all about the processes involved in the development, diagnosis of and recovery from an alcohol problem. I am familiar with the research and the questions and the great debates and the unsolved mysteries of addiction and sobriety. I fundamentally understand things like “powerlessness” and “turning it over.” I know the phrases and the real meanings behind the sayings of AA, from “avoid wet faces and wet places” to “meeting makers make it.” I also know that more than ½ o f the people for whom I win license appeals are not currently involved in AA, so I understand the misguided sting of pejoratives like “dry drunk.”
To be clear, you have to be sober to win a license appeal, but you don’t have to be in AA. Everyone’s recovery is different, but every recovery begins from the same point – the confirmed belief and fundamental understanding that you cannot drink anymore. Whether you go to AA or not, if you’re in recovery, the AA saying that “one drink is too many, and thousand is never enough” holds true. Making sure you never forget it is a critical component of recovery, and the DAAD wants to confirm that you “get it.”
In the next 3 installments, we’ll look at the most common reasons a license appeal is denied. We’ll begin by examining problems with the substance abuse evaluation (typically characterized by one hearing officer as “a questionable/insufficient substance abuse evaluation”), inadequate letters of support, and problems that arise at the hearing, including the big mistake of ever calling a witness. First, we’ll begin by looking at the substance abuse evaluation, and how a finding that it isn’t “adequate” will result in a lost Michigan license restoration appeal.