Michigan Criminal Defense Lawyer Blog
The process of winning back a Michigan Driver’s License after a Revocation for multiple DUI’s is a succession of steps. Each step is not only important in its own right, but a deficiency at any point in this process stops a person from going forward, and leaves them stranded right where they had the problem. In the Driver’s License Restoration section of this blog, I have covered just about every aspect of every step in the License Restoration process. In this article we’ll take a step back and re-examine the process more as a whole, rather than by individual parts.
At its simplest, the process starts by filing the Appeal, and ends with a decision by the Secretary of State’s Driver Assessment and Appeal Division (DAAD). If you think about some of the board games you might have played as a youngster, whatever the rules, the goal was to move from the starting space to the ending space. Getting there, however, was fraught with all kinds of challenges, including missed turns, or a spin or a roll that sent you backward, rather than forward. The License Appeal process can generally be thought of the same way.
In order to even get in the game, a person must be eligible to file a License Appeal. This means one of two things: If a person lost their License for 2 DUI’s within 7 years, then they will have to wait a full year before their eligible to Appeal. In practice, this means more like 2 years. If a person was Revoked for 3 DUI’s within 10 years, then they have to wait at least 5 years before they can file an Appeal.
While this sounds clear and simple enough, there are loads of things that can mess up the works. As a Driver’s License Restoration Lawyer who now handles close to 100 License Appeals per year, I have seen just about every situation one could imagine, from the normal to the ultra bizarre. In the usual case, a person will tough out the period of mandatory Revocation and then be eligible to file the Appeal. However, things can go wrong and push that eligibility date farther into the future. These “things” can range from the Court not promptly or properly reporting the last conviction to the Secretary of State to a person’s getting caught driving while the License is Revoked. Whatever the background, a person must wait until their eligibility date in order to file a License Appeal.
Being legally eligible doesn’t make a person “really” eligible, however. In order to be “really” eligible to start the Driver’s License Restoration process, a person must also have made the commitment to get and stay Sober. Sobriety is a must. In other articles I have talked about Sobriety as a perquisite to a License Appeal. And while a person must truly be Sober, and committed to remain Sober in order to really be eligible to win back their License, the definition of Sobriety is much broader than some believe.
In some of my earlier articles, I pointed out that more than ½ of the License cases I take are for people who are NOT actively involved in AA. And while a pretty sizeable number of my Clients are still active in AA, some haven ever set foot in a meeting. In the larger world, different approaches to Recovery are like different religions; each represents a different path to the same destination. True, some are just plain crazy, but outside of those that are off-the-wall, a person must find the path that’s right for them. You can’t get any benefit from AA if you hate it. On the other hand, if a person feels a meeting or two a week is necessary for them to maintain their Sobriety, then who’s to tell them otherwise. If it works for you, then it’s good enough.
The key thing is that a person must understand the need to eliminate alcohol from their life in order to win a License Appeal. I have plenty enough people who call me about getting their License back and tell me that they’ll say anything I tell them to, but that, in truth, they don’t believe that they can’t have a beer or glass of wine every now and then. I don’t take their cases. If there’s one thing the State is good at, it’s not granting a License to someone who isn’t convinced that they must remain alcohol-free for the rest of their life. In fact, the State accomplishes this by being over-protective, rather than too liberal. While very few scammers ever make it through the License Appeal process, plenty of truly Sober people wind up getting Denied because they didn’t have the proper help in proving that Sobriety.
Once a person is comfortable with their own Sobriety, and once they are legally eligible to file a License Appeal, then the process can begin.
To begin an Appeal, a Request for Hearing, along with a Substance Abuse Evaluation and the accompanying Letters of Support are filed in the Secretary of State’s “headquarters” in Lansing. And in a very real way, once all of this paperwork has been filed with the State, the Appeal can already be lost.
To clarify this, I need to take a step back and explain how I handle this part of the process in my Office, and why. When someone calls me to get their License Restored, we’ll explain to them that their first appointment with me is for the purpose of preparing them to undergo the Substance Abuse Evaluation. In other words, I want to meet with the person before they even consider having this form completed. And it’s no quick meeting, either. That first appointment takes about 3 hours.
The reason I spend 3 hours with a Client focusing just on getting the Substance Abuse Evaluation completed is because this document, quite literally, is the foundation of a License Appeal. It can’t be screwed up, anywhere. In order to serve its purpose, the Substance Abuse Evaluation must be both legally adequate (or “sufficient”) and favorable. This means that the form must be filled out properly, which itself is no small task. I refer all of my Clients to a particular, local Clinic that does an excellent job of completing the Evaluation. And by “excellent job,” I don’t mean some schlocky operation that churns out favorable sounding report after report. In order to count for anything, the Evaluation must bear all the marks of being clinically accurate and honest. In other words, you can’t fudge this stuff.
Once in a while, someone makes an appointment with me who’s already had a Substance Abuse Evaluation completed elsewhere. In virtually every such case, no matter how much they’ve paid to some Evaluator, I wind up pointing out to them how and why the Evaluation they did on their own is a loser, and we wind up preparing for a new one.
And that’s the larger point here. You simply cannot overcome an error in or with the Evaluation and win a License Appeal. This is so critical, it bears repeating: You cannot overcome a problem with the Substance Abuse Evaluation. If it’s not right, and essentially perfect, the Appeal is already lost. Period.
This underscores how important it is to go in for the Evaluation only after having been thoroughly prepared.
Once the Substance Abuse Evaluation has been completed, it needs to be checked for accuracy, completeness and favorability. “Favorability” means the “Prognosis.” The “Prognosis” is an actual checkbox in a dedicated section of the Substance Abuse Evaluation form. Not surprisingly, the “Prognosis” checkbox is in the section named “Prognosis.”
Within that section, there are 5 checkboxes. The Evaluator must check whether the Client’s prognosis for continued abstinence from alcohol (and/or drugs) is poor, fair, guarded, good, or excellent. Legally, the Prognosis must be either good or excellent in order to win a License Appeal. A Prognosis of poor, fair or guarded will, by law, result in a Denial of the Appeal. This too, bears repeating: A poor, fair or guarded Prognosis will, and must, result in an outright Denial of a License Appeal.
That said, there’s a lot more to an Evaluation than just that checkbox. To make sure nothing is missed, my Senior Assistant, Ann, and I separately review the Evaluation. Sometimes a correction needs to be made, and that’s as easy as contacting the Evaluator and asking for an update. This kind of “fix” goes to the legal adequacy or sufficiency of the Evaluation.
When the Prognosis is poor, fair, or guarded, however, it’s not as simple as just contacting the Evaluator and asking for an upgrade. Unless something was missed, or misunderstood in the Evaluation process, about the only thing that can be done with such an Evaluation is, in truth, to deep-six it. In these cases, it’s back to the drawing board. The Client and I will re-group and try another Evaluator. I have several that I use as back-ups.
This is a source of problems that I often encounter when I meet someone who has tried a License Appeal before on their own, or with some Lawyer who claims to “do” Driver’s License Restorations, and lost. The number one problem that causes most cases to lose is a problem with the Evaluation. I eliminate that problem by making sure it doesn’t exist before anything is filed.
In a very real way, a Substance Abuse Evaluation in a License Appeal is like packing job a skydiver does on their parachute before they jump; one mistake and it’s all over.
In part 2 of this article, we’ll pick up with the Letters of Support and continue through to the preparation for the actual Hearing.