Michigan Criminal Defense Lawyer Blog
Within the Driver’s License Restoration section of this blog, I have covered every facet of the License Appeal process. Some articles cover the process from a much broader, overview perspective, while others, particularly many of those more recent, put a single component under the microscope for a detailed examination. This article will return to the “overview” perspective, so that a reader searching for general information about License Restoration can find a starting point. In that regard, this article will also include a look at how I, as a License Appeal Lawyer, analyze and handle License Restorations. In order to not miss anything important, this article will be broken into seven parts. There will be plenty of links to related articles and relevant sections of my website.
First, let’s clarify who and what we’re talking about. “License Restoration” is a process that follows a “License Revocation.” It means a person has had their License Revoked for 2 or more DUI’s, or, in some cases, a combination of DUI’s and/or “Drug Driving” Offenses. Because so few cases actually involve a “Drug Driving” Offense, and because the principles involved in the Restoration process are the same anyway, from here on out we’ll simply use the term “DUI” as we proceed.
There are 2 classes of Revocations:
- A 1-year mandatory minimum Revocation for 2 DUI’s within 7 years, and
- A 5-year mandatory minimum Revocation for 3 or more DUI’s within 10 years.
This means that after the “minimum” period of Revocation, a person is legally eligible to file for Restoration of their Driver’s License. “Legally eligible” and really eligible are not the same thing. Let me explain.
One of the most important requirements in filing a License Appeal is that the person have at least 1 year of Abstinence in order to win back a License. In addition, the person will have to show that a certain period, typically at least 6 months (and that usually means, given that anyone with a 2nd DUI will almost always have at least a year’s Probation, an additional 6 months) of “voluntary” abstinence The operative term here is “voluntary.”
The body that ultimately decides License Appeals is the Michigan Secretary of State’s Driver’s Driver Assessment and Appeal Division, or “DAAD.” The DAAD rules require, in some cases, a minimum period of at least 6 months abstinence from alcohol, and, in others, a minimum of 1 year. “Voluntary” means just that; a person has maintained their abstinence on their own. This is where many people who stumble through this on their own, and many Lawyers who simply do not know better, make a critical mistake. ANY period of time that a person is on Probation or Parole is NOT considered voluntary. The DAAD holds that if a person is subject to potential legal or penal consequences for drinking, and even if they are not subject to testing, the effective period of such a restriction (meaning Probation or Parole) cannot be considered “voluntary.” In other words, a “voluntary” period begins when Probation or Parole ends.
In practice, a person can forget about winning a License Appeal with only 6 months of abstinence; the 1-year period is the minimum that will fly in a real-life Appeal. Thus, I will not accept a case where a person does not have at least 1-year abstinence from alcohol, and at least 6 months of that (or, more likely, another 6 months after that), of VOLUNTARY abstinence, because I know that, with any less, they will NOT win.
So far, then, we have established that a “Driver’s License Restoration Appeal,” or at least the kind about which we are speaking and that I handle, involves a person who has had their License Revoked for multiple DUI’s and who has at least 1 year of abstinence from alcohol, and at least 6 months of that, or, in most cases, because they will have been on Probation, at least 6 months AFTER that Probation ends, of voluntary abstinence.
Often, we speak of the “Rules” governing a License Appeal, but in reality, beyond Rules governing things like the conduct of a Hearing, admission of Evidence and other things that can be roughly equated to the rules governing a Trial, the real “Rule” that matters is known as “Rule 13.” By clicking the preceding link and scrolling down to Rule 13, the reader can see that it is rather involved and complex. We can boil that down, however, to something far more manageable.
While I could (and have, in the catalog of my many License Restoration articles) write a book about the nuances of the many relevant sections of Rule 13, for this “overview” discussion, what really matters about Rule 13 is that, in order to win a License Appeal, a person must, in all cases, show 2 things:
That the person’s alcohol problem is under control, and
That the person’s alcohol problem is likely to remain under control.
In other articles, I have explained how and why the State presumes a person with 2 or more Dui’s has an alcohol problem. Even if a person has 1 DUI, and another “Zero Tolerance” Under 21 with BAC .02 to .07 Offense, or a “Drug Driving” Offense, the State will essentially conclude that they have an alcohol and/or substance abuse problem.
Thus a person contemplating a Driver’s License Restoration Appeal will have to present evidence that proves that their alcohol problem has both been, and currently is under control, meaning they’ve been abstinent (meaning Sober) for at least the last 12 months, voluntarily, and, more important, that it is likely that they will NEVER drink or get high again, ever.
“Proving” these things doesn’t just mean showing up and saying so. In fact, another very important aspect of Rule 13 is what’s called the “standard of proof” required to win a License Appeal. The relevant part of Rule 13 state that “The hearing officer SHALL NOT (emphasis added) order that a license be issued…unless the petitioner (that is the person filing the Appeal), by clear and convincing evidence, proves…”
There are really 2 things going on here. First, the Rule itself is written in the negative. There is really no other law in anywhere else that directs the Judge or Law Examiner to NOT grant the requested relief unless a person proves something. For example, in order to win a Social Security disability claim, a person must prove their claimed disability by the same “clear and convincing evidence” standard used in a License Appeal, but that rule, like almost every other law or rule, is written in the affirmative, meaning that person wins their disability case if they prove that disability by clear and convincing evidence. Including that “shall not” language really changes everything.
In fact, the “shall not” language is something like a directive for the Hearing Officer to find a reason or reasons to DENY an Appeal, rather than looking for those that tend to show why it should be granted.
This makes more sense when we tie it in to what “clear and convincing evidence” means. I have covered this subject in great detail in many of my other articles, so we won’t waste pages and pages explaining it here, beyond pointing out that it is a very high standard of proof. It means that a person must not just “prove” their case, in the sense that they would win an argument, but they must be “convincing,” and convincing in a way that the Hearing Officer, who is essentially looking for reason to Deny the Appeal, can find none. If convicting someone of a crime by “proof beyond a reasonable doubt” is the equivalent of hitting a home run, then “clear and convincing evidence” isn’t far behind, and would roughly equate to hitting a triple.
In reality, although a person has to prove that their alcohol problem is both under control and likely to remain under control, proving that it is under control is the easier of the two. This leaves proving that their alcohol problem is likely to remain under control, meaning that they are a safe bet to never drink again, as the more important and more difficult issue to prove. It also means that if, in trying to prove their case, by “clear and convincing evidence,” they leave ANY doubt, meaning any unanswered question(s) that they are likely to NEVER drink again, they will lose the Appeal.
This accounts for why so many Appeals lose. And this accounts for why I GUARANTEE I will win any Appeal I accept the first time, or I will keep representing the Client before the Secretary of State DAAD until I ultimately do. Beyond my guarantee, I have a track record to back it up. As of the date of writing this article (November 6, 2011), I have won 191 of the last 193 Appeals I have filed (the first time around, by the way) since about June of 2009. I win because I know exactly what it takes to prove a case by clear and convincing evidence. I know what it takes to win.
By contrast, in the year 2010, the Michigan Secretary of State received 875 Administrative License Appeals (more on those later), and 650 of them were DENIED. That’s a 75% lose rate.
In that same year, I won 100% of all the cases I filed.
A large part of the reason for my success is that I am only interested in representing people who have really and truly gotten Sober. I do NOT get involved with Clients who think this all a bunch of b.s, and that they can still drink. Those people are destined to lose again and again, because, if you think about it, trying to discover just that kind of mindset is really at the heart of the whole License Restoration process.
Even if a person accepts that they cannot safely use alcohol, and has made the commitment to remain alcohol-free, they are going to have to be able to prove that, and prove it by “clear and convincing evidence.”
In many of my other License Restoration articles, I have examined the kind of proofs that must be made to convince the State that a person is a safe bet to never drink again. Defining what those proofs must be is a lot harder than explaining what they are not. And the best example of what they are not is to simply show up and say, “I quit drinking.” Even if a person means this from the bottom of their heart, in order for it to work, a person will need some education and instruction in order to make that statement a reality. In a very real way, saying “I quit drinking” is a plan and a goal. In order to make that plan work and reach that goal, a person needs some tools. This is where counseling and/or rehab (as in IOP or inpatient) and /or AA figure into things. We’ll examine the role of these things later, but for now, we can simply observe that the state needs to be convinced that the person is convinced that they can never, ever drink alcohol again. A person must be able to say that they have come to realize that they cannot consume alcohol because they have an alcohol problem. This does NOT mean that they are what we might commonly think of as a “drunk,” or someone who necessarily drinks frequently (although they can be), but rather they have come to accept that when they drink, there is a very real risk that, despite their plans to the contrary, things can get out of control, and that the only way to insure that never happens again is to never drink again.
In reality, most people with 2 or more DUI’s don’t have much of a problem recognizing that alcohol has been a negative factor in their lives, even if most of the negative consequences have been limited to their DUI’s. Standing at the bus stop, or searching for another ride to bum is a daily reminder of the damage done and the fallout caused by their drinking.
Even so, many people can live in a state of denial for a long time, and, as they do, the negative consequences will just continue to pile up.
Here, I must digress. I love being a Driver’s License Restoration Lawyer, but not just because I win all the time. That helps, of course, but the people I take on as Clients are those on the upswing in their lives. The sad reality is that those people who develop an alcohol problem and then successfully Recover from it are the minority. Most people are locked into their addiction. An alcohol problem is a tough problem to beat. In the real world, it beats far more people than beat it. In this battle, those who come out on top are the few, the proud, and the Sober. Interacting with these people is pure joy. In a very real way, it means the Clients I have are the “winners” of the world.
I have pointed out before the difference I have observed when I represent a Client for his or her 2nd or 3rd (or even 4th or 5th) DUI, when they are still coming to terms (or not) with having a drinking problem, and then hearing from them, years later, when they have gotten Sober and are ready to pursue a License Appeal. That difference is startling. Every single on of them will talk about themselves as if they have had 2 lives: The one before they got Sober, and the one after. They go from being angry and frustrated to being accepting and content. If you’ve ever met a person in Recovery, then you know just what I’m talking about. If the reader is in Recovery, then you can certainly identify with that transformation.
Some people in Recovery get involved in AA. There, they meet loads of people who have beaten back an alcohol problem. But outside the world of Recovery, we come back to the fact that most people with a drinking problem simply never get a handle on it.
Except those we have defined as the “winners.”
The State knows all too well that, statistically speaking, most people with a drinking problem will never get better. Sure, they may have brief periods of abstinence, but they’ll never get to that point of making the kind of changes necessary to insure a lifetime of Sobriety. Those people who are strong enough to overcome an alcohol problem are, in a very real sense, the “winners.” And that group of winners is more the exception, rather than the rule; they are, as we noted, a minority.
In Part 2 of this article, we will pick up by examining the 2 kinds of License Appeals that can be filed, and why I only handle one type. Then, we will examine some minimum qualifications a Lawyer should have in order to be considered a “Driver’s License Restoration Attorney,” and what a person should look for as they comb the field to find the person best suited to get them back on the road.