Michigan Criminal Defense Lawyer Blog
There are 3 things you must have in order to win a Michigan driver’s license restoration or clearance case: First, you must have a sufficient period of abstinence. Second, you must be legally eligible. Third, you must have some basic understanding of how to stay sober. This is not to say that just having these things, by themselves, means you will win your case, but rather that, without all 3 of them, you are dead in the water. This article will provide a single-installment overview of these 3 non-negotiable requirements to win a license appeal.
It helps to know why the Michigan Secretary of State does things the way it does. The written law specifies that “The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence,” that his or her alcohol problem is under control, and likely to remain under control. This means that the hearing officer does not sit impartially, as if he or she is holding a set of evenly balanced scales of justice, in order to decide “yes” or “no”. Instead, they start out with the scales tipped all the way to the “no” side and then require that you pile on enough evidence to tip them the other way.
This is very different than how we think about court cases, both civil and criminal, where, to use our scales of justice imagery, the proceedings begin with the scales set evenly. Each party puts the evidence on their side, in order to tip the scales in their favor. However, in a license appeal, there is only one side. The person appealing for a license is the only party and has the entire burden of proof to show that his or her alcohol problem is under control, meaning that he or she has a “sufficient” period of abstinence, and that his or her alcohol problem is “likely to remain under control, meaning hat he or she presents as a safe bet to never drink again. Let’s see how all this ties in with the 3 conditions I listed, above.
When a person’s license is revoked for 2 or more DUI’s, it is because he or she is categorized, under Michigan law, as a “habitual alcohol offender.” That categorization means he or she is legally considered to be too much of a risk to drive drunk again to have a driver’s license. Therefore, the state revokes it.
The only way he or she can ever win it back is by proving that he or she has quit drinking for good. The state has effectively drawn a line in the sand, having decided that the only people allowed back on the road are the ones who can show that they do not and will not drink ever again. The license appeal process completely excludes anyone who even thinks there is any possibility that he or she could ever consume alcohol again.
From a public safety perspective, it is beyond argument that people who don’t drink are zero risk to ever drive drunk. The Michigan Secretary of State has no interest in any explanations about how a person previously convicted of multiple DUI’s now only drinks on special occasions, or is committed to never driving after drinking, or any such thing. To the state, it is a foregone conclusion that anyone convicted of 2 or more DUI’s has, at a minimum, a risky relationship to alcohol.
Beyond the statistics that about 99% of all people with 2 or more DUI’s do, in fact, have a drinking problem, why would anyone EVER take such a gamble by putting a multiple DUI offender back on the road until he or she can demonstrate that they present no risk to ever drive drunk again?
The safest way to do that is to only give licenses back to people who don’t drink, and that’s exactly how the State of Michigan does it.
As much as someone may not like this, you might as well go outside at night and yell at the moon, for all the good it will do. These are the rules, and they do not take into account how much you may need a license, how hard it’s been without one, or anything like that. It is with this as a background that we can now turn to the 3 requirements to win a license appeal.
First, you must be sober. Saying this now almost seems a bit redundant in light of how I just explained that the written law requires a “sufficient” period of abstinence. In the real world, it’s best if a person has at least 2 years alcohol-free by the time he or she is sitting before a hearing officer for a license appeal.
While that’s not a fixed rule, my team and I won’t even consider filing a case for anyone who will have less than 18 months’ sobriety by the time of their hearing. Depending on the facts, we will figure out, on a case-by-case basis, how much clean time is enough.
Not having had a drink is just half the issue; the other half requires a firm commitment to never drink again.
Thus, “sober” means having quit drinking for good. The state wants to make sure that a person understands sobriety in terms of having a commitment to remain alcohol-free for life. In other words, a person needs to have quit drinking, not just to win back his or her license, and not just merely to make someone else happy. but because he or she simply had enough of it, and, as the AA people say, grew “sick and tired of being sick and tired.”
This goes a lot deeper, because when a person does get sober, his or her life changes in profound and sweeping ways. We’ll get into this more when we explore the 3rd requirement, a basic understanding of how to stay sober.
Sobriety is the first non-negotiable requirement in order to win a license appeal. Without being sober, a person will be forever stuck on the sidelines.
Second, you must be legally eligible. There is a specific date after which a person can file a driver’s license restoration or clearance appeal. Before that, there is NOTHING that can be done.
This seems easy enough, and it always starts out that way, because a person convicted of 2 DUI’s within 7 years will have his or her license revoked and cannot file a license appeal case for 1 year. In addition, while a person convicted of 3 or more DUI’s within 10 years will have his or her license revoked and be unable to file for 5 years.
The license revocation takes effect shortly after the Secretary of State receives the abstract of conviction from the court. The notice is sent to the person and the appropriate entry made on his or her driving record.
Things get messy when people get caught driving after their license is revoked. By law, ANYTIME the Secretary of State receives information that a person has been driving after his or her license has been revoked (and before being restored), it is required to impose what is called a “like mandatory additional” period of revocation.
This means a person will have his or her license revoked all over again for either an additional 1 or 5 years if they get caught driving. It does not matter whatsoever that they may have been eligible to file an appeal at the time of the driving infraction, that they haven’t had a license for many years, or that they really “need” a license (as one hearing officer says, “everybody ‘needs’ a license”).
The only thing that matters is that the license was originally revoked, they never got it back, and then the Secretary of State finds out they were driving.
The particulars of all this can get complicated and messy, but the bottom line is that a person cannot file a license restoration or clearance appeal until after any outstanding period of revocation has passed. There are NO exceptions. This date is always noted on the driving record.
Third, a person must have a basic understanding of how to stay sober. This ties into our first requirement, that a person must actually be sober. To be technical, the written law in license appeal cases first requires a certain, and what we call a“sufficient” period of abstinence from alcohol. It then goes on to specify that a person must show his or her alcohol problem is “likely to remain under control.” That roughly translates to proving him or herself a safe bet to never drink again.
There is a fundamental difference between “haven’t had a drink” and “will never drink again.” It is not just past tense versus future. Being likely to never drink again calls for real sobriety. Being sober is not merely about the absence of alcohol, but rather about a monumental change in almost every aspect of a person’s life, as well as his or her outlook on it.
When a person really gets sober, he or she is making a conscious decision to never drink again. For most people, and certainly for anyone convicted of multiple DUI’s, this decision comes about as a result of all the trouble caused by alcohol. When a person finally hits bottom, or as some describe it, has an epiphany, everything about his or her relationship to alcohol changes.
An “a-ha” moment like this will kill any thought of “cutting back” one’s drinking, or trying to “slow down”, or otherwise manage it. Instead, these life-changing insights provide a clarity of vision through which they finally see alcohol as the common denominator to all the problems in their life and realize the only choice is to quit for good.
The simple fact is that nobody quits drinking because it’s working out so well. When someone finally throws down the gauntlet and says, “enough is enough,” they want to make the kind of changes necessary not just to “quit drinking,” but to also stay quit, and remain sober for the rest of their lives.
This is where “support” comes in. I won’t rehash this subject much, because I just addressed it in a recent article, but it boils down to the person making the kinds of changes necessary to keep alcohol out his or her life for good. They ditch the drinking friends, and involve family and close friends in their recovery. Supportive friends and family won’t drink around the person anymore, and supportive partners and spouses will do things like remove all alcohol from their homes
Support, at its most basic, is comprised of active measures taken by the person themselves, and/or by those around them, in order to foster and protect their sobriety.
Even if a person went to AA or treatment BEFORE he or she quit drinking (this happens a lot), they often remember some of the lessons from the time they spent there, the most important of which is that you can’t pick up another drink again, ever, no matter what.
Other important lessons are things like “avoid wet faces and wet places,” and “one is too many, and a thousand is never enough.”
To be clear, although AA is the most well-known example of support, a person does not need to be in it to win a license appeal. Remember, we guarantee to win every case we take and most of our clients do not attend AA, so we know what we’re talking about when it comes to this.
Another and often overlooked aspect of “support” is how a person rebuilds his or her life without alcohol. Sober people, as they recover, shift the focus from all the problems drinking caused in their lives to all the good things that have happened since they’ve moved on. In other words, instead of being deterred from drinking again by concentrating on all the trouble they previously went through because of alcohol, they find inspiration by enjoying all the good things that sobriety has brought to their lives.
Without exception, sober people will agree that they feel better physically, emotionally and mentally since they “put the plug in the jug,” so to speak. When people really embrace sobriety, they don’t think of not drinking merely as a way to merely stay out of trouble, but as the path to a much better life.
Sober people regain the trust and respect of their family and other people who matter; they improve their relationships with those people, as well. They go back to school, complete unfinished degrees, get better jobs, and/or do better at the jobs they have. We could go on and on, but what’s unmistakable is that people who get sober change their lives in all kinds of ways for the better, and that in and of itself helps support their sobriety.
Being sober, being legally eligible to file a driver’s license restoration or clearance case, and having a basic understanding of how to stay sober are the 3, fundamental and non-negotiable requirements to win (and, in the case of being eligible, to even file) a license appeal.
Anyone interested in the license appeal process should spend some time researching the nearly 500 articles I have written and published on the topic. My blog has more information about driver’s license restoration than you can find any and everywhere else combined, but anyone looking to hire a driver’s license restoration attorney shouldn’t just take my word for it, and do his or her homework. Read around, and see how other lawyers explain things.
After you’ve read around, start checking around. All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to explain thing and answer your questions. We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p..m. (EST), at 248-986-9700 or 586-465-1980.