Michigan Criminal Defense Lawyer Blog
As Michigan driver’s license restoration lawyers, we hear a lot of the same things over and over again. One of the most common things we’re told is that a person “needs” to get his or her license back. This is a topic I have to address rather frequently in order to keep it in the reader’s line of sight. In this article, I want to make clear that “needing” a license has nothing to do with actually being able to win it back, and then focus on the main thing the Michigan Secretary of State looks for in every license appeal: real sobriety.
License restoration and clearance appeals are decided under strict rules that essentially require a person prove, by what the law defines as “clear and convincing evidence,” that he or she has not consumed any alcohol (or used any drugs) for a a “sufficient” period of time (generally, my office requires a minimum of 18 months’ clean and sober), and that he or she also has the commitment and tools to remain alcohol (and drug) free for good. In other words, a person has to prove he or she has honestly quit drinking (and/or getting high) and is a safe bet to never drink or use again.
As complicated as the whole license appeal process can get, each and every one starts when a person who has had his or her license revoked for multiple DUI’s files an appeal to get it back. The ONLY thing the state cares about in all of these cases is making sure the person is not a risk to drive drunk again, and the law makes clear that the only people who will be allowed to drive again are those who no longer drink, and can show that they are likely to never drink again. In the context of a license appeal, the line in the sand has been drawn at no drinking, because people who don’t drink are exactly zero risk to drink and drive.
In order to cut off any “but what about?” arguments right here, let me be crystal clear about this up front: the Michigan Secretary of State will not grant a license appeal for anyone who still drinks, or even thinks they can ever drink again. No matter how much a person insists that he or she doesn’t drink like they used to, or that they hardly drink anymore, or that they only drink on special occasions, or only drink at home, or that they would never again drive after drinking, the state will have no part of any of that.
The whole license appeal process is about screening out those people who have really quit drinking for good from everyone else.
When a person has his or her license taken away for multiple DUI’s, he or she is seen as a risk – way too much of a risk – when it comes to consuming alcohol. Under Michigan law, a person who racks up 2 DUI’s within 7 years, or 3 within his or her life is categorized as a “habitual alcohol offender.”
Anyone who gets “2 within 7” will have his or her license revoked for life, and cannot even file an appeal for at least 1 year. In the real world, a person will have no chance of winning his or her license back without the better part of 18 months’ sobriety, a good chunk of which must be accumulated while OFF of probation, unless he or she is in Sobriety Court.
Someone who accumulates 3 DUI convictions within 10 years (the licensing law is different from the criminal law) is also categorized as a “habitual alcohol offender,” and will also have his or her license revoked for life, and will be unable to file a license appeal for at least 5 years.
When a person becomes a “habitual alcohol offender,” the law presumes that he or she has a drinking problem. Beyond the law, however, and clinically speaking, it’s almost a certainty that anyone with 2 DUI’s has some issue with alcohol, and that anybody with 3 or more DUI’s has a serious issue.
As far as license restoration and clearance appeals go, the Michigan Secretary of State starts out with the idea that anyone who has lost his or her license for multiple DUI’s is a problem drinker. Accordingly, it is a foregone conclusion that if such a person engages in ANY drinking behavior, or has ANY relationship to alcohol whatsoever, beyond having totally given up alcohol (even if it’s just a belief that he or she might be able to safely drink again at some point in the future), it’s “game over” on the license appeal.
It may not be the nicest analogy, but imagine a school district sending out a letter announcing that “Charlie” has been hired as the new, after-hours custodian. The letter also says that while it’s true that Charlie had 2 criminal sexual conduct convictions involving minors many years ago, he hasn’t been in any trouble for over 15 years, and says that he is different now, and doesn’t “think about kids the way I used to.”
That sounds crazy, right?
By law, people like Charlie can’t go within 1000 feet of a school, and nobody in the world is going to take a chance on them in a school setting just because they say things are “different” now.
It’s kind of the same way when someone with multiple DUI convictions tries to say that they still drink, but they don’t drink as much, or can somehow “control” it now.
In fact, the very idea that a person has to even THINK ABOUT controlling or limiting his or her drinking is a clinical marker of a drinking problem. Normal drinkers don’t have to think that way.
Is it possible that a person can have 2 DUI’s and NOT have a drinking problem?
Yes, but those people are truly “one in a million.”
I have been a driver’s license restoration lawyer for nearly 30 years, have handled thousands of cases, and have never actually met the multiple DUI person who didn’t at least have some kind of troubled relationship to alcohol. Of course, I’ve been contacted by countless people who want to argue they don’t, but my point here is that if you want to win a license appeal, you’re going to have to accept that complete and total sobriety is a non-negotiable, first requirement.
For real.
This is not just about saying you don’t drink anymore, because the whole license appeal process and all the documentation you must present has to prove, by “clear and convincing evidence,” that you honestly have quit drinking, that you know and accept you cannot ever drink again, and that you are committed to lifetime sobriety. The job of the hearing officers is to confirm this, and their mission is not to look at all the reasons why you should win your case, but to look for the one reason why you shouldn’t.
This makes more sense when you actually look at what the law says, and how it controls the driver’s license restoration process:
The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following:
i. That the petitioner’s alcohol or substance abuse problems, if any, are under control and likely to remain under control.
ii. That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.
iii. That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act is a low or minimal risk.
iv. That the petitioner has the ability and motivation to drive safely and within the law.
v. Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision. (emphasis added).
Focus in on the opening words of that first paragraph: “The hearing officer shall not order that a license be issued….” This is a direct instruction to the hearing officer to NOT grant a license appeal unless a person proves her case as the rest of the rule requires.
This is very different than some kind of legal proceeding that begins at “neutral,” where the scales of justice start off balanced in the middle and can be weighted down one way or the other. In a license appeal, you start out with them weighed all the way down on “no” side, and you have to pile on enough evidence to get them to the middle and then keep going all the way to the “yes” side.
In other words, a hearing officer is kind of like an inspector for a submarine. A submarine that’s 99% waterproof isn’t good enough. The inspector’s job isn’t to tally up the fact that almost every last inch of the vessel doesn’t leak; it’s to find that one drop of water and declare the thing unsafe. It’s the same for hearing officer; his or her job is to find the one reason why a person so much as might be a risk to drink again, and then not grant the appeal.
When this starts making sense, you can then see why the state will quickly deny any case where a person admits to drinking, or even holds open the possibility that he or she might be able to drink again some day.
Moreover, the state have absolutely no interest in why a person wants a license. As long as someone is sober, it doesn’t matter if a person just wants to buy a convertible and drive around the block in the nice weather.
By contrast, it couldn’t matter why a person needs to drive, or how not having a license will adversely affect him or her; the answer to a license appeal always starts out at “no,” and will stay that way unless he or she can prove that they’ve quit drinking and have the commitment to remain sober.
All this means that winning a license appeal depends on proving that you have genuinely “put the plug in the jug,” and that you are sincerely committed to never drinking again. If the evidence in your case shows anything anything less, then you’ll lose.
If you are sober, however, then you have what we need to make your case a winner, guaranteed.
If you do need to win your license back, or otherwise obtain the clearance of a Michigan hold on your driving record, do your homework as you look for a lawyer. When we take a case, we guarantee to win it. 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 answer your questions and explain things. We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST), at either 248-986-9700, or 586-465-1980.