Michigan Criminal Defense Lawyer Blog
Everyone knows that it’s difficult to win a Michigan driver’s license restoration case (or obtain the clearance of a Michigan hold on a driving record) after multiple DUI convictions. There is, however, a LOT of misunderstanding out there about how the license appeal process works and why winning is so hard. In this article, I want to clear up a few things about that. In many of my other driver’s license restoration articles on this blog, as well as in the license restoration section of my website, I undertake a close-up examination of the issues and steps involved in the license appeal process. Here, I want to take a step back from that and look at the bigger picture. Winning licenses back is so routine to me that I guarantee to win every license restoration case I take, but that’s because I completely understand the process and know precisely who it’s designed to keep out of the driver’s seat. And make no mistake, the license restoration process was intentionally designed to deny most appeals.
We must begin with the simple but important truth that the Michigan Secretary of State (SOS) is supposed to refuse to return a license to anyone who still drinks alcohol. The SOS knows that everyone “needs” a license; everyone understands that it’s hard to get by without one, but none of that matters in terms of who can win a license back. The state sees anyone with multiple DUI convictions as a high risk (too high a risk), and is not willing to consider putting that person back on the road again until he or she can prove they’ve become genuinely sober, as in completely alcohol-free. I get loads of calls from people who want to explain that they can safely enjoy the occasional drink and are no longer any kind of risk on the road and blah blah blah. The state does not buy any of that. A person can argue all he or she wants about how the system is unfair, but unless you play by the rules already in place, you’re simply wasting your breath. In fact, the primary reason I guarantee to win every license appeal I file is that I will ONLY accept cases for people who are honestly, genuinely and really sober and have given up any of the “I can still have a glass of wine (or a beer) every once in a while” stuff. And that brings us right to the heart of the matter; license appeals are hard because they are designed to be hard.
Statistically speaking, more than 95% of all alcoholics are unable to accumulate any kind of long-term abstinence. Of course, a lot of people with 2 DUI’s will say, “But I’m NOT an alcoholic!” Perhaps not, but then again, maybe so; it doesn’t really matter what you or I think, because if you want to win back your license, you have to play by the state’s rules (not that the state says everyone with 2 DUI’s is an alcoholic). However, anyone who has had his or her license revoked for 2 or more DUI’s is legally categorized by the state as a “habitual alcohol offender.” Skipping all the go-nowhere discussion about definitions here, you can just take that to mean that the state sees you as having a problem with alcohol, even if that “problem” is that you have a demonstrably increased risk to make bad decisions (like getting behind the wheel) some of the times you drink, as evidenced by your driving record. The state is not willing to bet that someone has somehow improved his or her decision making skills enough, after drinking, to ever give him or her a license back. Instead, under the rules, after a person’s license has been revoked for multiple DUI’s, the only way for him or her to ever legally drive again is to prove that he or she has quit drinking for good, because people who do not drink do not drink and drive. And that’s the easy part of why things are so hard…
In order to win a license appeal, a person has to prove certain things, and the agency that decides whether that’s been done satisfactorily or not is the Michigan Secretary of State’s Administrative Hearing Section (AHS). An AHS hearing officer (who is, except in name only, an Administrative Law Judge) considers the evidence in each case and renders a decision based upon applicable law and rules. The primary rule governing all clearance and restoration cases is known as “Rule 13” and it very specifically establishes how each and every case must be decided. The first part of the rule sets out the key legal issues and how the hearing officer is supposed to go about evaluating the evidence submitted regarding them. Remember, we’re keeping this simple, so we’ll take a quick look at the rule itself, skip over all of the complex and confusing legal analysis, and get to the real meat and potatoes. First, here’s the relevant part of the rule:
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.
Now, here’s the stuff that’s important: Notice how the rule begins by providing that the hearing officer “shall not order that a license issue”? This is a negative instruction. It tells the hearing officer that his or her job is about not granting a license appeal unless certain, very specific terms are met. The rule could have more easily been written without that negative mandate, but no matter how you try to word it that way, it pretty much loses all of its force. So we begin with a negative phrase – a “shall not” – and then move on to the exception to it, which is separated by the word, “unless.” This means that unless a person’s evidence rises the level of “clear and convincing,” the hearing officer must not grant the appeal. And while that all sounds like it makes sense, the first thing anyone should be asking is “evidence of what?” What must be proven by “clear and convincing evidence”? The answer lies in the subsections of the rule that follow. Again, our goal here is to skip all the confusing legal analysis and cut right to the chase. To do that, we can use one of my favorite phrases…
IN THE REAL WORLD, it’s generally only the first 2 sub issues that matter the most, and we can simplify them as follows: First, a person has to prove that his or her alcohol (and/or drug) problem (if you’re filing a license appeal, it is presumed that you have an alcohol and/or substance abuse problem) is “under control.” This means that a person can fix the time of his or her last drink or substance use. For many people, this is called a “sobriety date.” We can skip the technical time requirements for this, because you don’t have any chance to win a license appeal without at least a year of sobriety under your belt, and I generally won’t get involved in a case before a person has at least a year and a half clean time (which in turn will give him or her about 2 years by the time we’re sitting in front of a hearing officer).
Second, a person must prove that his or her problem is “likely to remain under control.” This means that person can prove that he or she is a safe bet to never drink (and/or use drugs) again. This is the real meat and potatoes of a license appeal – proving that you will never drink again. Given the incredibly small number of people who actually manage this over the long haul (as opposed to the much larger number who attempt it, but then slip up and drink again), the state admonishes the hearing officers to only grant appeals to people who can show, by evidence that is clear and convincing, that they haven’t had a drink (and/or used any drugs) for several years, and have the tools and commitment to never drink (and/or use any drugs) again.
Remember, the state is not and never will be interested in anyone trying to explain, no matter how sincerely, that he or she can, after losing their license for multiple drunk driving convictions, safely consume alcohol again. It doesn’t matter how much a person tries to make the case that it’s only once in a while, or it’s only a glass of wine, or only a toast at a special occasion. The deal is that in order to get your license back (or win a clearance), you have to show that alcohol is out of your life for good, and forever. There are no exceptions to this, so trying make yourself one is a complete waste of everyone’s time.
In that regard, a person can say that he or she is done with drinking until they’re blue in the face, but that alone is not enough. If it was, then winning a license case would be as easy as declaring, “I quit, and I mean it.” The hearing officer, instead of getting caught up in all the things a person says about being through with alcohol, is directed by the language of the rule to look for just one thing that indicates the contrary. Remember, the hearing officer does not have to prove anything, but rather just find a reason why a person’s claim of sobriety isn’t so rock solid as to be considered “clear and convincing.” Back IN THE REAL WORLD, plenty of people will try and figure out how to sound like they’re sober in order to win a license appeal. Even though the hearing officers are pretty much experts at figuring this out, they also have that one huge tool to help them – the requirement that anyone trying to win a license reinstatement case must prove his or her sobriety by “clear and convincing evidence.” In other words, you can say you’re sober all day long, but you have to really put forth an airtight case, and do it for a skeptical hearing officer who has been hired to look for the one flaw in your evidence, rather than all the things than may be right about it.
It we give any credence to the statistics that over 95% of all alcoholics don’t get and stay sober, and we cut all the reasonable slack we can to the idea that a higher percentage of people who get sober are amongst the group that files for license clearance or restoration appeals, it still means that the overwhelming majority of people file these cases are not a safe be for long-term abstinence. In other words, the license appeal process is designed to keep people out, and that means most of those who apply. License appeals are hard because they are supposed to be hard. The idea is to only grant the appeals of people who have genuinely gone from drinker to non-drinker, and it is understood that plenty of really sober people will try, and lose, and maybe even try and lose several times because their evidence is not “perfect” enough. From the state’s point of view, it is better to deny a genuinely sober person several times because his or her case isn’t exactly airtight than it is to EVER put some person who is at risk to drink again (and therefore a risk to drink and drive again, no matter how much he or she insists otherwise) back on the road.
It’s probably fair to say that the whole clearance and license appeal process is about denying cases, and those who win are the select few who can prove that they are the exceptions. If you think of it this way, then you have a more accurate concept of how things work IN THE REAL WORLD. License appeals are hard. They’re supposed to be hard, even for those who have honestly quit drinking. If you have done that part of things and honestly quit drinking, I can help with the rest. I guarantee that, if I take your case, I’ll make you that exception who wins. To find out more, click around this blog, particularly the driver’s license restoration section, and check out my website and the relevant license restoration section, as well. Read everything from every other lawyer, as well. Be smart; do your homework and compare. Then, when you’re serious about moving forward, pick up the phone and call around. All of my consultations are done over the phone, right when you call. You can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., EST, at 586-465-1980. When you’re ready, we are here to help.