Michigan Criminal Defense Lawyer Blog
“Do-it-yourself” is a great idea when it comes to some things, but it’s a recipe for disaster when it comes to others. A “do-it-yourself” driver’s license restoration appeal is usually a disaster. As a Michigan driver’s license restoration lawyer, a large number of my clients are people who have tried to do a license appeal on their own, without a lawyer, and then lost. Some try – and lose – more than once. None of this surprises me. Eventually, and particularly because you can only file 1 appeal in a 12 month period, frustration overtakes pride and common sense exceeds frugality, and I get the call. In fact, there is a decent chance that if you’re reading this, you have lost a license appeal.
In this article, I want to go beyond a long-winded way of saying, “Call me!” Here, we’ll do a kind of generic post-mortem exam of what went wrong with your case and try and figure out why you lost. We’ll look at the 3 main reasons why license appeals lose. While knowing what you did wrong in any situation will help prevent you from making the same mistake again in the future, it is my hope that the reader will come to see that there is substantially more to a license appeal than you’d ever imagine. Frankly, undertaking this on your own is just a bad idea.
Beginning to understand what went wrong requires understanding that, in a very real way, the job of the Michigan Secretary of State Driver Assessment and Appeal Division hearing officer is far more about looking for a reason to deny an appeal than anything else. The DAAD rule (rule 13) that governs license appeals begins with the instruction that, “The hearing officer shall not order that a license be issued unless the petitioner proves, by clear and convincing evidence, all of the following…” This essentially means that the hearing officer is given a negative mandate. And this makes sense, when you take into consideration the fact that statistics consistently show less than 1 out of 10 alcoholics is ever able to maintain long-term abstinence. We’ll defer examination of what makes an “alcoholic” for another day, but the point here is that job number one for any hearing officer is to make sure that no person who is even the slightest risk to every pick up a drink again gets a driver’s license. The flip side is that a person filing an appeal has to prove, by “clear and convincing evidence,” that he or she is among that single-digit, less than 10%, and not the overwhelmingly large, greater than 90% group. That’s a very tall order.
I could write a book about this very aspect of license appeals. The “shall not” language of the governing rule in license appeals is not just important, it is controlling, and really determines how everything, in every case, is decided. Here, we’ll just note that the hearing officer will look past 1000 reasons to grant your appeal and focus on the 1 reason to deny it because that is precisely his or her job. This puts things into context real fast: Whatever may have been right with your case, if there was 1 thing wrong with it, that was enough for it to be denied…
It is with that sunny picture in mind that we can look to the quality of your evidence, because just about every denial is based upon some problem or problems with the evidence. In my practice, I call the substance abuse evaluation the “foundation” of a license appeal. If you take the time to read even a little from this blog, or my website, you can find out about me, and my passion for doing license restoration cases, and how I approach them. What defines me is that I won’t take a case for anyone who isn’t genuinely sober, but counter-balance to that is a guarantee that I will win every case I take. My point is that I’m a bit more than some lawyer saying he “does” license appeals. I know this stuff better than I know the back of my own hand.
The substance abuse evaluation really boils down to a professional clinician’s assessment, using specified and standardized criteria, of the likelihood that you will, or will not (and the goal here is “will not”) ever drink again. Loads of people try and talk the talk, so it becomes the evaluator’s job to see if you can walk the walk. Beyond that, the state, meaning the Secretary of State’s Driver Assessment and Appeal Division (DAAD), seems to almost “play games” sometimes with the way it does things. The substance abuse evaluation form is a great example of that. The form very clearly asks for certain information, but then the DAAD expects it to be provided in a certain way – and not the way anyone unfamiliar with this process would think. In the real world, this means that just about every substance abuse counselor out there will look at the form and say, “I can do that.” It also means that just about every one will get it “wrong,” at least by the DAAD’s standards.
Unfortunately, it takes a lot of time and effort to learn how to do substance abuse evaluations that are satisfactory to the DAAD. Anyone who has lost to hearing officer Bandy, for example, because his or her evaluation was deemed “questionable/insufficient,” or hearing office Modelski because his or her evaluation was found to be “inadequate” (or, in some cases, “woefully inadequate”) has gotten a front row seat to that show. Part of the problem is that when people lose, they never call up their former evaluator and show him or her the order denying their case. This lack of feedback leaves the evaluators of the world without any real information about what they are doing wrong, and what they are doing right, for that matter. In order to make sure my evaluators know what they’re doing, I regularly communicate with them – often before a case is filed – and explain the implications of every word they use on the evaluation. Part of winning consistently is having learned from your earlier losses.
The hard reality is that many of the things done right in license appeals in general, and on the substance abuse evaluation in particular, are actually lucky accidents. Thoroughbred horse racing provides a reasonable comparison. A person could bet on a “sure thing,” like the 2014 Kentucky Derby winner California Chrome, and win. As a person learns more about horse racing, it can be tougher to win, because knowing some aspects of horse race handicapping, without knowing all or most aspects, can lead to half-educated decisions. Remember the old adage that “A little knowledge is a dangerous thing.” A newer handicapper may win any number of times without really understanding all the variables at play and how they came together for the horse he or she. This is called luck.
Luck may have some role in horse racing, but it has no place in license appeals. Driver’s license restoration cases are won or lost in the preparation. This is why my first meeting with a new client is scheduled for at least 3 hours, almost all of which is spent preparing for the substance abuse evaluation. I go over the form line-by-line with my client before he or she ever meets the evaluator, and I complete my own substance abuse evaluation checklist that I send along with the client so that I know the evaluator will get every relevant detail into the evaluation form.
Another common cause for losing a license appeal is problems with the letters of support. There is a lot to this, and probably as much about what the letters should not say as there is about what they should. The bottom line is that I almost always have to do rather extensive correcting and editing of every letter that crosses my desk. By law, a person needs to submit at least 3 letters of support, yet only an amateur would do that. Good practice dictates filing at least 4 support letters so that if one is disqualified for some reason, there are still 3 in the game. I prefer to file even more, but if you only present 3, and 1 winds up getting disqualified, your appeal is dead in the water before it even starts.
The primary evidentiary purpose of the letter is to verify your abstinence from alcohol. Many letters miss on that score, and really amount to little more that what a colleague of mine calls “good guy” (or, you could say “good gal”) letters. The DAAD doesn’t care if you are the nicest person in the world or you’re the meanest SOB on the planet; if your letters support your claims of abstinence, then they’re helpful. If not, then they’re worthless.
Here’s where experience counts; sometimes, when a letter writer wades into “good guy” or “good gal” territory, those sentiments and observations can be used, perhaps refined a bit, and, if included with other relevant abstinence information, can combine to make a very powerful letter. The ugly truth here is that this is really learned over decades of post-decision analysis of what worked, and what didn’t. This is not the kind of thing even the smartest person will know without a lot of practice. If the substance abuse evaluation is “science,” the letters are “art.” Both need to be flawless to support a winning appeal.
At the end of the day, many people will read over the denial of their appeal and find that the hearing officer was not persuaded by, or that there was something downright wrong with one or more of their letters. From my perspective, this is a completely avoidable mistake, and the blame in this situation lies solely with the person who filed the appeal. If it was a lawyer, then he or she is responsible; if someone tried a “do-it-yourself” appeal, then about the only comfort they’ll have bumming rides for the next year is that they didn’t spend any money on legal fees to lose. I can’t resist pointing out that because I provide a guaranteed win in every case I take, this is not a risk encountered by any of my clients.
Finally, a person may have submitted a good appeal on paper, only to show up and be his or her own worst enemy at the hearing. This is why I absolutely do a pre-hearing “prep” session with every client the night before every hearing. My prep sessions last about an hour, and the client and I will go over every aspect of his or her case, and every question he or she can expect from the specific hearing officer who will be deciding it. This is critical, because each hearing officer is unique, has his or her own particular areas of interest, and will ask very different questions from one another. If you don’t know exactly what to expect when you show up for your hearing, then the simple truth is that you are unprepared.
While this is by no means an exhaustive account of the things that can go wrong with and otherwise cause you to have lost a license restoration appeal, problems with the substance abuse evaluation, the letters of support, and/or at the hearing are by far the most common. They are also completely avoidable. If you’ve made the “do-it-yourself” mistake once, you should seriously consider a different approach next time. AA people have a saying (and AA is NOT required by the way, to win a license appeal) that the definition of insanity is doing the same thing over and over again, and expecting a different result. If you have really quit drinking, I can make sure that you win and then savor the joy of putting a valid driver’s license back into your wallet.