Winning a Michigan Driver’s License Restoration Case With a Medical Marijuana Card

It may come as a surprise that a medical marijuana card is one of the most common obstacles to winning a Michigan driver’s license restoration case, but it’s true. This topic is so misunderstood that it needs to be regularly addressed on this blog. There is no doubt that much of the confusion arises because recreational marijuana is legal in Michigan, and medical marijuana has been allowed by law for even longer. Thus, people often say things like, “but it’s legal!” That misses the point entirely. Drinking is legal, as well, but any use of alcohol will kill a license appeal dead in its tracks. In this article, we’ll see how this all works.

Medical marijuana can kill a Michigan driver’s license restoration case.Of course, a person must first meet certain legal requirements to win a Michigan driver’s license restoration case. We can boil all of that down to 3 key things: First, a person must be eligible to file a license appeal. Second, he or she must prove a legally sufficient period of abstinence from alcohol and all other mind or mood altering or potentially habit-forming substance UNLESS MEDICALLY NECESSARY. Third, he or she must also show that he or she has both the ability and the commitment to remain completely abstinent for life.

In essence, to win a license appeal, a person must prove sobriety – real sobriety. This means a lot more than just not drinking for a while, or not drinking as much as one used to. Instead, a person must truly believe and understand that he or she can never drink or use any other drugs – ever again – unless, as we noted, it’s medically necessary. To be clear, “medically necessary,” as we use the term here, doesn’t just mean medically warranted; it means that there is no suitable alternative, medical or otherwise.

The simple fact is that just about anyone can get a medical marijuana card. There is no shortage of “green clinics” whose entire source of revenue is to certify patients for them. A person could probably count on one hand how many times all of these places – combined – have ever refused to sign off on someone who comes in and pays for the appointment to get a card. That’s not helpful to anyone who needs to win back a license.

Now, let’s turn to why medical marijuana is such a problem in a Michigan driver’s license restoration case. To really understand this, we have to back up a bit and look at the Michigan Driver’s License Rules and see how they work in the real world. First, we’ll set out the law as it’s written, and then summarize what it really means in plain English.

The main rule governing license appeals is Rule 13, and it provides as follows:

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.

Even though it’s not that long, the rule sure has a lot of legal terminology. Fortunately, we can really boil this down quite a bit.

First, – and this is important – note that the rule opens by mandating that the hearing officer “shall not order that a license be issued” unless the petitioner proves certain things by what is next specified as “clear and convincing evidence.”

In simple terms, that means the Michigan Secretary of State hearing officer who decides any given driver’s license restoration case is supposed to start out with “no” (or “deny”) as the answer, unless the person makes the proofs set out in the rule by “clear and convincing evidence.”

The best way to understand “clear and and convincing evidence” is to think if hitting a home run. In other words, a person has to step up and really crush it. He or she has to hit the ball into the stands, so to speak.

Although not quite the same, and a little bit lower down on the burden of proof scale, “clear and convincing evidence” is really not all that far away from the “proof beyond a reasonable doubt” standard required to convict someone of a crime.

So what, exactly, does a person have to prove?

Before we can explain that in a way that makes sense, we have to back up a bit further and understand an important part of the DUI laws. In Michigan, any person who is convicted of 2 DUI’s within 7 years, or 3 DUI’s within 10 years, is automatically categorized as a “habitual alcohol offender.” One of the legal consequences of that is that his or her driver’s license will be revoked.

Another key consequence is that every such person is legally PRESUMED to have some kind of alcohol problem. The upshot is that anyone who has to file a driver’s license restoration case does so under the assumption that he or she has some kind of drinking problem. That doesn’t mean that he or she is necessarily presumed to be a raging alcoholic, but rather that his or her relationship to alcohol has at least made them a demonstrated risk on the road. That’s enough to be a problem.

As an old therapists’ saying goes, “Anything that causes a problem IS a problem.”

With all that in mind, here are the 2 primary things that must be proven in every Michigan driver’s license restoration case or out-of-state clearance appeal:

First, that the person’s [presumed]alcohol and/or substance abuse problem is “under control.” This requires him or her to demonstrate that he or she has been completely abstinent from alcohol (and/or drugs, including recreational marijuana) for a legally sufficient period of time. The exact amount necessary will, of course, vary from case to case. Someone with 6 or 7 prior DUI’s will need to show more clean time than someone with just 2 or 3.

Our firm generally requires a person to have been completely clean and sober for at least 18 months before we’ll move forward with a license appeal, but, as just noted, that can vary depending on the background and facts of any individual case.

Second, that the person’s [presumed] alcohol and/or substance abuse problem is “likely to remain under control.” This means that he or she is going to have to show both the ability AND commitment to stay completely alcohol (and/or drug) free.

Put another way, a person has to prove themselves to be a safe bet to remain completely clean and sober for life. There is no room in this for someone to even thinks he or she can ever take another sip of alcohol.

That’s the legal part of things, but there is another side to this coin, and it has to do with recovery. Anyone who knows the first thing about getting sober understands that it requires not only abstinence from one’s substance(s) of choice, but also from anything that can alter his or her mind or mood, or otherwise become habit forming.

Thus, a person in recovery from a drinking problem is EXPECTED to avoid taking any kind of medication that can give them a buzz, that can change their mood, or may otherwise lead to some kind of dependence. In the real world, this is most often a concern if a person needs some kind of pain or anti-anxiety medication. There is a lot more to this than just theory. Our firm has had more than a few clients who, after a period of sobriety, wound up relapsing on opiate pain medication.

This is a very real-world concern. The risk of relapse from medication exists despite a person having every intention of staying clean.

Here’s how this is all supposed to work:

Sober Sam winds up in the ER for something like a broken finger. When he’s speaking with the doctor, he explains that he is in recovery, and that he needs a non-narcotic alternative to traditional pain medication.

If a person must use a medication that the Secretary of State considers mind of mood-altering, or that is otherwise potentially habit-forming, there are 3 key requirements that must be separately met before he or she can win a license appeal:

1.) It must be shown that any such drug is absolutely medically necessary.

2.) It must also be demonstrated that there is no suitable medical alternative. For example, can a person use a non-narcotic pain medicine, instead? Can someone with something like anxiety try therapy, rather than medication?

Meeting both of those conditions is hardly enough to win a driver’s license restoration case, however.

3.) The prescribing physician must also provide documentation – usually, in the form of a DETAILED letter – that clearly indicates he or she knows of the patient’s prior substance abuse problem(s) and subsequent recovery.

One thing experience has taught my team and I is that WE should draft the letter for the doctor, or at least provide explicit instructions as to exactly what it should explain. Most lawyers don’t understand this well enough, let alone a busy doctor who has very little time and absolutely no reason to know the nuances of driver’s license restoration law and practice.

Any such letter must also specify exactly how the treating physician monitors the patient’s use of the medication in question, and that he or she is carefully doing so for any signs of abuse.

This NEVER happens with any “green clinic” provider. In fact, we have found that plenty of people who use what the state would consider “risky” prescription medications haven’t exactly leveled with their treating physician about their past DUI’s and/or their recovery stories, either. Plenty of people will admit to having a medical marijuana card and NOT having told their primary physician.

That won’t fly.

Let’s look at 2 very different hypothetical examples, admittedly a bit extreme, to help clarify this point:

Imagine that our poor friend Sober Sam has been undergoing chemotherapy and radiation for stomach cancer. He has told his doctor about his past DUI’s and his struggles with alcohol, and that he has been sober for 7 years. After trying various pain and anti-nausea medications with no success, Sam’s doctor suggests that he try a low-dose “gummy” with THC. Fortunately, it works, and Sam gets relief from it.

When he files his license appeal, Sam’s treating physician writes a letter indicating he knows all about Sam’s substance abuse history, and explains how and why Sam has been using the medical marijuana. The doctor points out that he and Sam discuss his gummy use regularly, and that he has made numerous inquires, and has found no indication Sam is abusing them.

Of course, if Sam was our client, we’d make SURE the letter covered everything necessary to satisfy the Secretary of State.

Next, for contrast, imagine that Drinkless Diane also has a medical marijuana card. Diane has 2 prior DUI’s, but hasn’t had a drink in about 4 years. She got her card from a “green clinic” after complaining of trouble sleeping at night. She returns to the clinic every year for a check in, as they require that, even though her card is good for 2 years.

Diane’s main treating physician doesn’t know about her DUI’s or abstinence from alcohol, nor does he does know about her medical marijuana card.

Diane has no chance – as in ZERO chance – of winning a driver’s license restoration case. What sucks even more is that plenty of McLicense lawyers will take Diane’s case and take her money. Most of those lawyers won’t understand the intricacies of all this, and perhaps a few won’t even care. Whichever that may be, anyone who represents Diane is going to run headlong into a loss – unless her treating doctor can and does thoroughly address the marijuana issue.

My team and I wouldn’t take her case unless and until she has squared away her whole medical marijuana situation.

This is the beauty of our firm’s guarantee to win every case we take. If we do accept a case and it doesn’t succeed, then we’re stuck with it. We’d be obliged to do the whole thing over again next year, without charging any more legal fees. This equals double work for half the pay.

That’s not something we’re interested in doing.

Of course, the risk of losing a license appeal isn’t really a problem for any lawyer without a guarantee, because they get paid to do the job once, whatever the outcome.

By contrast, it is HUGE consideration for me and my team. That’s why we won’t take any case we can’t make into a winner. Accordingly, when we accept someone’s money, they can rest easy knowing that we’ll get them back on the road – guaranteed.

And to be clear, we DON’T make any money by not taking cases. This is our business – it’s what we do for a living. We don’t like to turn anyone away, but unless we have the ingredients to make a successful appeal, we’ll have to decline representation. The reader may not like the truth about the difficulties of medical marijuana in the context of a Michigan driver’s license restoration case, but it is what it is. At least nobody is going to lose their money, or their appeal, with our firm.

If you’re looking for a lawyer to win your license back or clear a Michigan hold on your driving record so that you can get a license in another state, be a wise consumer and read around. Pay attention to how different lawyers explain the license restoration process and how they describe their various approaches to it.

This blog is a great place to start. It is fully searchable and I add a new, original piece every week. As of this writing, I have composed and published over 690 articles in the driver’s license restoration section. The reader can find more useful information here than anywhere else, but don’t take my word for it – check for yourself.

Once you’ve done enough reading, start calling around. You can learn a lot by speaking with a live person, and that’s exactly what you’ll get when you call our office. We can handle your case no matter where you live, so as you explore your options, make sure you give us a ring, as well.

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. We’ll even be happy to compare notes with anything some other lawyer has told you.