Michigan Criminal Defense Lawyer Blog
This is the final installment in my abbreviated series about winning back your Michigan Driver’s License (or obtaining a Clearance) after having it Revoked for multiple DUI’s. After determining eligibility (Part 1), obtaining a rock-solid Substance Abuse Evaluation completed (Part 2), editing and revising the Letters of Support (Part 3), double-checking everything again, make any last minute changes, and then filing the Appeal (Part 4), and then receiving notice of and prepping for the Hearing (Part 5), we will, both figuratively and literally, be walking in to the actual Hearing itself. In this last section, we’ll talk about what happens there.
I often try and relax a nervous Client about the Hearing by pointing out that, although it tends to feel like it, the Hearing itself is not some “it all comes down to this!” proposition. In fact, precisely because we will have done all the groundwork with precise attention to detail, and have made sure, by check and re-check, that everything is correct and right and good to go, the Hearing won’t be nearly half as bad as one might fear. In reality, the Hearing will mostly be about confirming what has already been submitted to the Driver Assessment and Appeal Division (DAAD) of the Michigan Secretary of State.
Hearings are scheduled on the hour at 9, 10, and 11 am, and then 1, 2, 3 and 4 pm, Monday through Friday. They are scheduled to last no more than an hour, but most last about a half hour, and I’ve never been part of one that lasted much more than 45 minutes. As I noted in the previous installment, the irony of this is that my Client and I will usually spend twice as long “prepping” for the Hearing as we will actually conducting it.
And that brings me to a point that I have learned to be rather important. Handling as many cases as I do for people who previously tried a License Appeal with another Lawyer and lost, I was surprised to find out that many of those Lawyer didn’t take charge and open the Hearing by asking the first set of questions. Not to be flippant about it, but what are you paying a Lawyer for if he or she doesn’t take the lead and start winning your case right from the outset? When someone tells me about a Lawyer who “just sat there,” or otherwise didn’t ask the very first questions in order to set the direction and tone of the case, I’m reminded of the old saying that there are 3 kinds of people in this world: Those who make things happen, those who watch things happen, and those who wonder what happened. As a Michigan Driver’s License Restoration Lawyer, I have be the kind of person who makes things happen, and that has to be a win.
At the appointed hour, the Hearing Officer will call the case, and my Client and I will go from the lobby to the Hearing Room of the particular Hearing Officer to whom the case has been assigned. (I only do live, in-person Hearings. I don’t believe in and will NEVER do a video Hearing, and I have every one of my Hearings set for the Livonia Branch of the DAAD). After being seated, the Hearing Officer will open the proceedings with certain preliminary remarks, and then goes through the documents we have previously submitted, identifying each and marking each as an exhibit. Once we’re through with that, and everyone has identified himself or herself for the Record, the Client will be sworn in. I then have the opportunity, as Attorney for the Petitioner (that’s what someone is called who is Appealing to get their License back before the DAAD) to make an opening statement.
Sometimes I do, and sometimes I don’t. The decision whether to make an opening statement or not is often made right then and there, at the Hearing. For all of the preparation that goes into a License Appeal case, after more than 2 decades of conducting License Appeal Hearings, I have developed a certain instinct, and know when to say something, and when to not. Oftentimes, I want to get right to the heart of the matter, and prefer to go right to asking questions of my Client.
Opening statement or not, I will turn to my Client and ask the first questions of the Hearing. If there is any “it’s show time!” moment, this is it. I will, of course, have THOROUGHLY prepared my Client for this moment, and will even have explained my “backup plan” in case the Client freezes up. If there has been a theme throughout this whole series, it has been that success lies in preparation, and proper preparation involves redundancy.
My first questions are, by design, intended to relax my Client, and ease them into the Hearing. I want my Client to get comfortable talking about their drinking days, and I’ll walk them through talking about how they went from drinker to non-drinker. Even the most apprehensive of people, meaning those who need to be led along a little bit by my questions, will soon enough get warmed up. It is far more often the case that I have to interrupt a person, in order to shut them up than it is that I ever have a problem getting them talking, even if I have to lead them along a little to get started. And I’ll take a little credit here, as well: this is what I do, and have done for over 22 years. I’m good at it, and even if I wasn’t naturally inclined to it (and I think I am) after as many years as I’ve been at it, a Lawyer better be able to relax a nervous Client and put them at ease as they answer questions like second nature.
Eventually, when I feel that I’ve set the stage, I’ll end my questions and turn the floor over to the Hearing Officer so he or she can ask their questions. Different Hearing Officers are interested in different things, but there is a common set of questions that each will ask. You can expect, no matter who is deciding your case, to be asked things like the date of your last drink, when you last drove a vehicle, if you have any pending traffic citations or criminal cases or charges, and whether or not you are on Probation or Parole. From there, what questions the Hearing Officer asks is a function of what they find important, and much of that depends on the facts of your case, as well. A person that has just 2 DUI’s on their Record, and whose last conviction was more than 7 years ago will likely be asked some different questions than someone with 7 DUI’s, whose last conviction was just 2 years ago. Some Hearing Officers ask different questions of those who claim to be active in AA than they do of people who do not claim current AA attendance.
When I’m the Lawyer, my Client will know exactly what questions to expect, so that part of the Hearing won’t be any surprise. My role in the Hearing changes, however, once I yield the floor to the Hearing Officer for his or her questions. I listen carefully to what is asked, and I listen carefully to my Client’s answers. If I think that the Client misunderstood the question, or his or her answer was incomplete, or subject to misinterpretation, or in any way just not good enough, I make a note of it so that I can come back and fix things as I follow up with my own questions.
In a License Appeal Hearing, I get to ask the first questions, then the Hearing Officer gets to ask his or hers. Once the Hearing Officer is finished, I get to follow up, and when I’m done, the Hearing Officer can go again. This kind of “volley” can go on until the hour is up, although in practice, it’s almost always me first, followed by the Hearing Officer, with perhaps a last question or two from me thereafter to wrap up the proofs.
Beyond playing lifeguard and watching my Client’s back as the Hearing Officer does his or her questioning, I will also be making notes of anything particularly strong that my Client says in response to the Hearing Officer so that I can come back and explore an important or significant facet of their case when I get my chance to question again.
In addition, I will be paying close attention to how my Client answers the Hearing Officer’s questions. Often, the person will respond in way (meaning tone of voice, or emphasis in their speech) that reinforces some aspect of their “Recovery Story,” and is helpful to their case. This kind of thing only happens spontaneously, but when it does, it provides an unbeatable confirmation of a person’s commitment to Sobriety.
Finally, at some point, or even at several points during their testimony, I’ll write down, word for word what my Client gives as an answer to a question posed by the Hearing Officer. More on that later…
Once the all the questions have been asked, and the questioning is over, the Hearing Officer will ask me if I have any witnesses to call. I’ll answer that I do not. I NEVER call witnesses. I have written rather extensively on this topic, but the bottom line is that witnesses do nothing but create problems. Anything positive a witness can contribute can be put in a letter. Letters, however, cannot be cross-examined. Letters don’t get nervous, they don’t get confused, they can’t be “tripped up” or otherwise make a harmful mistake under questioning from the Hearing Officer. Witnesses can, and often do many, if not all of the above. Calling a witness at a License Appeal Hearing is a first class amateur mistake.
At the end of the questioning, I have the opportunity to present a closing argument. This allows me to highlight the strong points of the case as well as the strong points brought out during the Hearing. I ALWAYS make a closing argument. To me, this is really the whole point of the Hearing, and I look forward to it. I can now summarize my Client’s “Recovery Story” to the Hearing Officer, and I can tie in things noted in the Substance Abuse Evaluation and the Letters of Support with my Client’s testimony. I can point to specific questions asked the Hearing Officer and quote my Client’s answers. When it’s done right, nothing comes across stronger than that.
Yet for all of the importance of the closing argument, and I do believe it is critically important, it can only be, on its best day, a reiteration or repetition of what’s in the documents and what’s been said at the Hearing. In other words, the closing argument can only be as good as the evidence that’s been introduced before it’s made, and presenting winning evidence is always a matter of preparation.
In the final analysis, these six installments not only summarize how a Michigan License Appeal should be done, but precisely how I win my cases. Similarly, I think, the emphasis on preparation and double-checking everything shows why I Guarantee a first time win.