Michigan Criminal Defense Lawyer Blog
To win a Michigan driver’s license restoration case, a person must prove that he or she is clean and sober, and is committed to remaining clean and sober for life. “Clean and sober” specifically means that a person does not consume or use any kind of mind or mood altering substances whatsoever. Thus, anyone who uses recreational marijuana, no matter how infrequently, is not truly “clean and sober.” This is one of the very first things anyone learns when they get into recovery.
That brings us to an important point, because the kind of sobriety required to win a license appeal isn’t merely “incidental” in the sense that a person merely has not yet consumed any alcohol or used any drugs. Instead, a person must prove that he or she is sober by choice, meaning that he or she both understands the need for complete abstinence and has made a conscious decision to live substance-free. For its part, the Michigan Secretary of State is going to drill down and really explore the strength of a person’s ongoing commitment to do just that.
One of the most telltale indicators that someone doesn’t “get” this comes after being confronted with the need to prove that they’ve chosen to be completely clean and sober. Often, they’ll say something like, “but marijuana is legal now!” Being clean and sober means knowing one can never indulge in the use of any mind of mood-altering substances, whether they’re legal or not. The Secretary of State has specific, established criteria for granting a license appeal, and they require complete abstinence from all drugs and alcohol, and a commitment to never drink or use any kind of intoxicants again.
Thus, it doesn’t matter that marijuana is legal, anymore than it matters that drinking is legal. Proving sobriety requires proving one’s past abstinence from and ongoing commitment to remain abstinent from any and all mind or mood-altering, or potentially habit-forming substances.
To understand this, it’s helpful to look at some relevant language from the main rule (Rule 13) that governs license appeals. For purposes of this discussion, we’re only concerned with a few key sentences within it, although the rule itself is rather long. Even though I’ve trimmed out as much as possible, a lot of language had to be reprinted below for context.
To make it easy, the reader can skip over the rule itself, and go directly to my summary of the key phrases that follows this excerpt:
(a) 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.
(b) Before ordering that a license be issued to the petitioner, the hearing officer shall require that the petitioner prove, by clear and convincing evidence, that he or she has completely abstained from the use of alcohol and controlled substances, except for controlled substances prescribed by a licensed health care professional, for a period of not less than 6 consecutive months or has abstained for a period of not less than 12 consecutive months if the evidence considered at the hearing establishes that a longer period of abstinence is necessary. The evidence may include any of the following:
(i) That the petitioner has ever submitted to a chemical test which revealed a bodily alcohol content that is not less than 2 times the level indicated in section 625a(9)(c) of the act.
(ii) That the petitioner has 3 or more convictions for alcohol or controlled substance-related offenses.
(iii) That the petitioner has attempted to bring his or her alcohol or controlled substance abuse problems, if any, under control, but suffered a relapse by using, on at least 1 occasion, alcohol or a controlled substance, or both, except for a controlled substance prescribed for the petitioner by a licensed health professional.
(iv) That a substance abuse evaluation of the petitioner reveals a diagnosis of past or present alcohol or controlled substance dependency.
(v) That the petitioner’s license was previously revoked or denied under section 303 of the act because of alcohol or controlled substance convictions.
(vi) Other showings that are relevant to the issues identified in paragraphs (i) to (v) of this subdivision.
Okay, now that all the technical stuff has been covered, let’s focus on a few key points to be taken from this.
To begin, note that the hearing officer is instructed to NOT issue a license unless the person proves his or her case by what is defined as “clear and convincing evidence.” We see that language used in both section (a) and (b).
Section (a) specifies that a person must prove 2 things:
First, that his or her alcohol problem and/or substance abuse problem is “under control,” meaning that he or she has not consumed any alcohol or used any drugs for the legally specified period of time (we’ll get to that shortly), and
Second, this his or her alcohol and/or substance abuse problem is “likely to remain under control,” which essentially translates to convincing the hearing officer that the person has both the ability and commitment to remain alcohol and substance-free for life.
Section (b) specifies the length of time a person must prove (again, by “clear and convincing evidence”) that he or she has abstained from alcohol and all drugs (unless prescribed by a physician).
Before we dive into that, let me point out that, as a practical matter, I have never seen nor heard about anyone EVER winning a driver’s license restoration or clearance case without more than a full year of abstinence. Thus, in our practice, we generally require a MINIMUM of 18 months’ sobriety before we’ll even consider moving forward with a license appeal case.
This is consistent with the how the “time part” of the rule is interpreted by the state. Although the rule requires a minimum of 6 months’ substance and alcohol-free (which would, of course, include marijuana), it goes on to quickly note that the hearing officer can require more than a year for various specified reasons, including a “catchall” reason listed at the end, in section (vi).
In the real world, this means that a person will absolutely need more than a year of complete abstinence from drugs and alcohol to have any chance of winning a license appeal. Of course, the longer the better, but as I noted, my team and I generally wants at least 18 months’ of clean time before we’ll even think of plowing ahead with a license appeal case.
Now, for all of that, the rather simple point I’m trying to make is that marijuana is every bit a “substance,” as contemplated by the license appeal rules (and anyone who understands recovery).
About the first thing a person will learn in counseling, therapy, or AA is that “clean and sober” means abstaining from any and everything that can get one drunk or high.
Everyone seeking help with a drinking problem is taught, right from the get-go, that he or she cannot “switch” to using another substance in place of his or her drug (or drink) of choice
In fact, there is a specific clinical term for this, and it’s called “substitution.”
This is a HUGE concern for anyone trying to get past a problematic relationship with any substance.
For example, even though someone who has a cocaine problem was using a stimulant, if he or she stops using coke, and then begins using tranquilizers, or alcohol, they’ll soon develop a problematic relationship with those substances.
This goes way beyond such substitutive use merely being a “risk.” It is accepted as fact that anyone with a drinking problem who manages to stop consuming alcohol, but then uses marijuana recreationally is NOT truly clean and sober.
And let me be perfectly clear about this: it doesn’t matter what the reader thinks, what I think, or what anyone else thinks about this. This is the way the Secretary of State thinks, and that’s the agency that either gives you a license back or not.
You can disagree all you want, but that won’t get your license back.
In fact, even if a person going though a license appeal has a medical marijuana card, he or she is going to have to prove to the Secretary of State that there is no suitable medical alternative for him other than the medically necessary use of marijuana for his or her condition.
The same must be demonstrated for any mind, mood-altering, or potentially habit-forming drug the person takes, even pursuant to a prescription.
A doctor’s letter will be required for any such prescription, and it will have to cover a lot of very specific ground.
This is a rather deep subject in its own right, but for purposes of this article, it should suffice for me to point out that when our firm handles any such case, we usually work directly with the prescribing physician in drafting the letter to make sure it does, in fact, address the necessary critical factors that it must.
This, of course, rules out the kind of medical marijuana card people get at some low-budget green clinic, where they pay abut $100 to meet with a doctor one time, describe some pain or other problem to him or her, and then are approved.
Circling back to recreational marijuana, the the takeaway is that a person cannot use it and win a driver’s license appeal.
Period.
My team and I actually do take a lot of grief about this from people who refuse to believe it. Within a week or so of the time this article was written, I received a rather harsh email from someone who disagreed with the state of the law, and the marijuana article that I linked to earlier in this piece. I will reprint it below, exactly as I received it, and I will also include a screenshot of it at the end of this article, but I must first note for anyone who is offended by rough language that it does contain 4 F-bombs:
Name: Anon
Email: Fuckyou@fuckyou.com
Phone: 666-666-6666
Comments: I just wanted to say fuck you. Sobriety isn’t a requirement to a get a license. And if the offense is not marijuana related, there’s 0 reason to screen for marijuana. Why not caffeine? Nicotine? It is in all cases, special pleading. Marijuana is neither a controlled substance nor the cause of most offenses. Do you fucking job and defend people.
It may not be especially well-written, and the writer is obviously angry, but it’s his or her lack of understanding about sobriety and the driver’s license rules that’s really the problem, and what I’m trying to address in this article.
That level of understanding of sobriety is important in the context of a license appeal, because the hearing officers are going to expect a person to know enough about recovery to know why sobriety means abstaining from alcohol and all other substances, and then be able to explain how they intend to do that.
That’s not possible for anyone who thinks that they meet any definition of “sober” but can still smoke weed.
Moreover, and as I noted above, the rules are the rules, and they set out the parameters within which a person can win a license appeal – or not.
With that, we come full-circle in this article: You can’t win a Michigan driver’s license restoration or clearance case if you use, or even think you can use, recreational marijuana.
If you are looking for a lawyer to win back your Michigan driver’s license or obtain the clearance of a Michigan hold on your driving record so that you can obtain (or renew) a license in another state, be a good consumer, do your homework, and read around. Read how lawyers explain the license appeal process, how they break it down, and how they detail their approach to it.
When you’ve done enough of that, start checking around. 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, and even compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. and 5:00 p.m. (EST), at either 248-986-9700, or 586-465-1980.
Here’s the screenshot of that email:
