There is an old saying that, “a little knowledge is a dangerous thing,” and while it has almost universal application, it is especially relevant when someone tries to “play lawyer” and handle his or her own driver’s license restoration or clearance appeal. You can learn can get a lot of information from it, but Google can’t give you a law degree. People often confuse, or incorrectly equate information with knowledge and experience. A person can acquire information about a particular subject, but that’s very different from having a systematic understanding of it, especially from having actually done it (successfully, no less).
The dictionary defines systemic as follows: “relating to a system, especially as opposed to a particular part.” In terms of driver’s license restoration and clearance appeals, this means that understanding the individual parts of the license appeal process isn’t enough; one has to understand how they flow and interact, as a system. For example, most people know that to win a license appeal, you have to submit a “favorable” substance use evaluation (SUE), but they don’t really understand what the various course specifiers on the front page mean, nor what the differences are between them.
The license restoration process is, in every sense of the word, a system, and it is based on certain, well established principles of law. The whole “burden of proof” requirement serves as another example; the law mandates that, in a license appeal, a person prove his or her case by what is defined as “clear and convincing evidence.” Anyone handling a license appeal needs to know exactly what that means, and how that standard compares with, and is different from, the other legal standards of proof, like “preponderance of the evidence,” “probable cause” and “proof beyond a reasonable doubt”.
Driver’s license restoration appeals involve a lot more than just filling out a bunch of forms and saying that you’ve quit drinking. In fact, driver’s license restoration and clearance cases serve as a great real world example of the concept that “you don’t know what you don’t know.”
To make the point more clearly, let me illustrate further. The idea of “systemic,” in this context, doesn’t mean some closed system, like a game with certain rules, but rather includes the license restoration process within the larger system of the law, which itself has certain concepts built upon concepts, with those, in turn, having been build upon other concepts, almost ad infinitum.
Although it may not seem so technical at first glance, every part of the license appeal process is based upon some other underlying legal meaning, and you can keep burrowing down through them, all the way to the precise legal definitions of specific words, like “clear,” and “convincing”.
In fact, the whole “clear and convincing evidence” standard of proof, as it is applied in license appeal cases, helps illustrate this point:
Unlike almost every other legal proceeding, which begins by presenting evidence to a neutral party who is supposed to begin with an open mind, favoring neither side, the hearing officer’s legal mandate in a license appeal is to NOT grant the case, unless, as the law instructs, the person proves it by “clear and convincing evidence.”
This is a small, but very important distinction, and it means that every license appeal filed with the Michigan Secretary of State starts out at “no,” and must be denied, unless the person filing it convinces the hearing officer to say “yes.” Let’s look at the written law to help clarify this. We don’t have to go over all of it (what we’re talking about here is in the first 2 paragraphs), but for information purposes, the main rule (Rule 13) governing license appeals reads as follows:
R 257.313 Standards for issuance of license.
Rule 13. (1) With respect to an appeal hearing that involves a review of a
determination of the department which results in a denial or revocation under section
303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act, all of the following provisions
apply:
(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.
(c) If the hearing officer determines, under subdivision (b) of this subrule, that
the petitioner must prove complete abstinence for a period of more than 6 months, then
the hearing officer shall explain the reasons for the determination in the written order
issued by the hearing officer.
(d) The hearing officer may require that the petitioner present evidence from not
less than 3 independent sources to corroborate the petitioner’s behavior with respect to
alcohol and controlled substances.
(e) The hearing officer may require the petitioner to present a current urinalysis
drug screen to corroborate the presence or absence of controlled substances or alcohol,
or both, in the petitioner’s body.
(f) The hearing officer may require that the petitioner submit a current substance
abuse evaluation on a form prescribed by the department.
(g) The petitioner may submit any or all of the following:
(i) Letters from other persons that document his or her behavior regarding alcohol
and controlled substances.
(ii) Proof of his or her past and current involvement with a treatment program or
programs.
(iii) Proof of his or her past and current structured support program.
(iv) Other relevant evidence.
(h) If the hearing officer concludes that the petitioner has met the requirements
of this subrule, then the hearing officer may order a restricted license for a period of time
to be determined by the hearing officer before consideration for an unrestricted license.
This subdivision does not apply if the petitioner is a nonresident seeking relief so that he
or she may apply for a license in his or her home state.
(2) If a petitioner’s application for a license has been denied, or if his or her license
has been revoked, under section 303(1)(e), (g), (h), (i), (j), or (k) or (2)(a), (b), or (e) or
320(2) of the act, then the hearing officer shall not order that a license be issued to the
petitioner unless the petitioner proves both of the following by clear and convincing
evidence:
(a) That the petitioner has the ability and motivation to drive safely and within the
law.
(b) Other showings that are relevant to the issue identified in subdivision (a) of this subrule.
(3) If a person’s license has been revoked under section 320(2) of the act, then the
department shall not issue a license to the person unless the person establishes both of the
following:
(a) That the person has the ability and motivation to drive safely and within the
law.
(b) Other showings that are relevant to the issue identified in subdivision (a) of this subrule.
Notice, at the very beginning, how the rule begins with the instruction that the hearing officer shall not order that a license be issued.
This is huge.
This shifts the burden of proof entirely to the person filing the appeal. Many people may think they know what all this means, but probably don’t, and, truth be told, most lawyer miss this, as well.
In the most general sense, it means the hearing officer must start out at “no,” and unless the evidence submitted clearly convinces him or her to say “yes,” the case must be denied.
We see this play out a lot in ignition interlock violation cases, when a person goes in on his or her own, without a lawyer, and loses. Thereafter, they’ll contact us and question why the hearing officer didn’t rule in their favor, and they’ll want to argue things like common sense, or, “why would I…?” or some other reason that wasn’t part of their proofs.
However, as the rules go, if a person fails or misses a breath test, it’s up to him or her to PROVE, by clear and convincing evidence, that he or she wasn’t drinking alcohol. The hearing officer doesn’t have to do anything other than wait for the person to show clear and convincing proof – or not. It is not part of the hearing officer’s job to investigate anything.
Sometimes, the rules and the way they’re interpreted produces unfair results, but the bottom line is that anyone looking around on the internet, or trying to win a violation hearing by saying that their interlock provider told them this, or told them that, or that they called and spoke with somebody, without written proof, and without solid evidence that they weren’t drinking, doesn’t know what they’re doing, and will lose because that’s how the rule is written.
In a purely legal sense, when people argue things like “why would I drink when I knew I was going to be testing?” they’re asking a question, not presenting any kind of proof.
Moreover, there are important interactions between various provision within Rule 13, laid out above. There is, for example, an enhancement provision that allows a hearing officer to require more than a year of sobriety if a person has ever been convicted of a DUI with a BAC of twice the legal limit, or if the person has 3 or more DUI’s, or has ever had a relapse. You can’t really learn these things by “googling” around.
How, exactly, do the hearing officers define “relapse?” The state’s Substance Use Evaluation (SUE) form no longer has a section called “relapse history,” and has instead replaced it with one called a “lifetime abstinence history.” This means that a period of abstinence, followed by a return to drinking, can be construed as a “relapse,” even though the person may have only stopped drinking, with no plans to quit for good, because he or she was on probation and required to test to prove that he or she was complying with the Judge’s “no drinking” order.
Or not.
Here’s an easy test: after reading Rule 13, above, if you do not automatically and immediately understand the corollaries I have listed below to the most commonly used provisions of the corresponding section, then you are essentially flying blind and don’t know what you’re doing:
Rule 13.
(a) No license, unless you hit a home run with your appeal.
(i) Letters of support (NOT “good guy” letters).
(ii) Favorable SUE.
(iii) Sober lifestyle and no risky medications.
(iv) No other issues on driving or criminal record, especially DLWR offenses.
(v) Other favorable and probative evidence .
(b) Better have at least 18 months of sobriety.
(i) Better have at least 18 months of sobriety
(ii) Better have at least 18 months of sobriety.
(iii) Better have a longer period of sobriety than what preceded your last relapse.
(iv) Better understand the DSM IV and the DSM V, and their different diagnoses.
Also, your prior driving record, aside from any DUI’s, can screw things up in all kinds of ways.
If these all makes perfect sense to you, then you’re probably a driver’s license restoration lawyer. If you have to stop and think about any of them for more than a second, then handling license appeals is certainly not what you do for a living. If you have even a single question about any one of the corollaries I listed above, then you should quit screwing around and trying to play driver’s license restoration lawyer or trying to become one on the internet.
Now, for all of that, because the law allows people to represent themselves, some folks will be hell-bent on trying to save the money and do it themselves. I have written plenty of articles about the perils of a “do-it-yourself” license appeal, and I have tried to make some of those same points here, in this article, as well.
However, it’s simply way more work for me to go on and on and try and talk someone inclined to do so out of doing it themselves, so I say if you’re inclined to try it yourself, go for it.
If you win, then good for you, and you can never say I tried to dissuade you in some grubby attempt to get your money. If you don’t win, though, then you know where to find us when you need us. It’s honestly just a lot easier to let someone try it themselves first, because when they do call, we won’t have to waste any time trying to explain the risks of a homemade license appeal job.
Many of our clients come to our office having first tried it on their own and losing.
Of course, I don’t mean any of this to sound like a person shouldn’t look around as he or she tries to gather information. In fact, one of my signature lines is that if you’re looking for a lawyer, you should read around as much as you can, and read what other lawyers have written, including how they explain things, and how they explain themselves.
There is NEVER a downside to checking around, exploring your options, and learning what’s out there.
However, as I noted at the beginning of this article, information is great, but it’s not the same thing as knowledge and experience. Remember, Google can’t give you a law degree. Nor, for that matter, can it guarantee to win your case, like we do.
If you are looking for a lawyer to win back your Michigan driver’s license, obtain the clearance of a Michigan hold on your driving record, or handle an ignition interlock violation, do your homework. All of our consultations are free, confidential, and, best of all, done over the phone, right when you call. My team and I handle Michigan license issues no matter where in the state (or even the country) you may live. We 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.
Our consultations are free and our cases are handled on a “flat-fee” basis with upfront fees!