Michigan Criminal Defense Lawyer Blog
There are 3 possible outcomes to a Michigan driver’s license restoration appeal: You win your license back, you lose your case, or, if you live out of state, you win what’s called a “clearance.” Because I guarantee a win in all the cases I take, there’s no point for me to talk about losing, beyond pointing out that, if you do lose, you have to wait a year to try again. Similarly, there isn’t a lot to tell about an appeal for anyone who lives out of state, either, because when you win an out-of-state appeal, you are granted what’s called a “clearance,” meaning that the hold on your driving record is lifted so that you can obtain or renew a license in your new state.
If you live in Michigan, and you win reinstatement of your license, all you can win is a restricted license for the first year, and you must drive with an ignition interlock installed in your vehicle for that year, as well. This article will focus on what happens when a current Michigan resident wins a driver’s license appeal. Beyond a general lack of understanding about the kind of license a person “wins back,” there have been some changes in the rules regarding license restorations within the last several years. The practical upshot of this is a person will very often hear outdated information about regaining the privilege to drive, even from someone who has actually gone through the process, albeit a while ago.
As a Michigan driver’s license restoration lawyer who has answered endless questions about the type of license a person actually wins back, it may help for me to begin by clarifying a few points. First, the Secretary of State (and, by extension its Driver Assessment and Appeal Division, or DAAD) doesn’t care what kind of license you need, or will work best for you, because “caring” has nothing to do with the rules that control what kind of license can be initially restored. Second, and this is probably the most important thing to understand, there is absolutely NO WAY around getting a restricted license with an ignition interlock for at least the first year after you win.
There is, admittedly, a significant disparity here in terms of what happens if a person wins an out-of-state clearance appeal as opposed to an in-state restoration appeal. Out-of-staters, almost without exception, automatically get a “full” license from their new state. In fact, in my nearly quarter century of lawyering, I cannot specifically recall a single case where a person got anything less. This can seem unfair, especially to the Michigan resident who, but for a matter of geography, will be required to drive with restrictions and the “blow and go” for a year.
No one ever said life is fair. As much as I spend hours and hours with each of my clients (the first meeting in my office lasts 3 hours) going over every detail of the license appeal process, my job is to get to the finish line and win the case. I understand how a person can get all worked up about the fact that the guy who live in Florida will get a full license, and almost be rewarded for leaving Michigan, while the person who lives here not only gets a restricted license and a breath machine, but has to file a whole new appeal all over again, after a year, in order to remove those restrictions and the breath device. Even so, there is nothing to be done about it, so I have to deflect that anger and direct a person’s attention to those areas where we can actually do something, like winning the appeal the first time
Up until a few years ago, if you won a license restoration appeal and lived here in Michigan, you could remove the ignition interlock automatically after one year. That didn’t change the fact that you still had a restricted license, but it did mean you could stop paying for the interlock device as soon as you had driven on it for 12 months, and have it removed from your vehicle. Then, several years ago, the Secretary of State changed the rules. Now, you must keep the interlock for at least a full year, but you cannot, under any conditions, have it removed until you go back for a hearing before the DAAD and win approval.
This merits repeating: When you win a driver’s license restoration appeal, you have to drive on a restricted license, with an ignition interlock unit in your car for at least a whole year. After 12 months, you can file another license restoration appeal seeking a “full” license and permission to remove the interlock unit. You cannot take the interlock off after the first year unless you win your appeal to do so.
This isn’t as easy as it sounds. The Secretary of State requires that you file a whole new license restoration appeal, complete with a new substance abuse evaluation, new letters of support, and what is called a “final report” from the your BAAID provider. Once the DAAD receives all of that, it schedules another full hearing. In this appeal you must also prove (or re-prove, really), by “clear and convincing evidence,” that your alcohol problem is “under control,” and that it is “likely to remain under control.” If you were give any conditions to fulfill in the order granting your first appeal, you will need to show that you have done so. Virtually all of my clients hire me to handle this second hearing because the stakes here are rather high.
Winning the removal of both interlock device and license restriction is far from automatic. Any problems on your final report will be examined with a microscope. If you had a positive breath test, or any other “issue” with the interlock that didn’t result in a violation, you’ll need to be prepared to explain it in detail at your hearing. The hearing officer has a lot of discretion he or she can exercise in deciding a case for removal of the interlock and restrictions. In a worst-case scenario, the hearing officer can completely deny the entire appeal and take your license back. In a less than worst-case, but less-than-ideal situation, the hearing officer can agree to remove the restrictions, but keep you on the interlock, or, agree to remove the interlock, but keep you on restrictions. Obviously, the goal is for you to win back your full (unrestricted) license without any interlock.
This is why it is important to put in the same level of effort at your second appeal as you did for your first. Whatever else, you didn’t win by accident then, and you certainly won’t the second time around. Like everything else, success in the execution is the result of careful and thorough preparation. It takes a lot of work to go from no license to restricted license to full license, but by comparison to not being able to drive, it’s worth it.