It is a fact that regaining your license is much harder than ever getting it the first time. The work involved in restoring a driver's license is time consuming and very particular. They say the devil is in the details, and there are a lot of details in this process. I have divided my discussion of this process into several parts:

First, in this part, we'll deal with the Request for a Hearing and the Substance Abuse Evaluation.

Second, we'll deal with the first of the issues or things you must prove, and the letters of support you must submit with your Application for a Hearing and Substance Abuse Evaluation.

Third, we'll go over the second issue or thing you must prove, what I call the Big Issue, and how you do that.

Fourth, we'll briefly discuss a seldom-occurring issue that can be very important if it applies to you.

Fifth, we'll review what kinds of additional documents you may want to submit.

Sixth, we'll look at preparing you for the actual hearing.

Last, I go over a final wrap-up of the process.

A person trying to win back their license is called a Petitioner, and must request a hearing by the Secretary of State's Driver Appeal and Assessment Division. This is done by filing a Request for a Hearing along with a Substance Abuse Evaluation with the Michigan Secretary of State's Driver Assessment and Appeal Division. That hearing is conducted in a hearing room, before a Hearing Officer, who is also a Licensed Michigan Attorney. At the hearing, the Petitioner must prove 4 specific things, by clear and convincing evidence (the fifth almost never comes up). In fact there are really only two or three things that you need to concern yourself with. The full text of the rule can be found by clicking here, and scrolling down to page 8, rule 13.

The two main things you have to prove are:

1. That your alcohol problem is under control,
   
   
2. That your alcohol problem is likely to remain under control, and, in some cases,
   
   
3. That you are motivated to drive safely and within the law.

Although we deal with the issues, or things you must prove in the following sections, very briefly these three things, in my experience, mean that:

1. You have quit drinking and haven't consumed any alcohol in the last year.
   
   
2. You have a system or plan in place to keep you from drinking, like having completed an alcohol education or rehab program, and/or that you have made substantial and permanent lifestyle changes that will keep alcohol out of your life.
   
   
3. You demonstrate a willingness to follow the law and any restrictions the Secretary of State may impose upon you.

The whole process is started by filing the Request for a Hearing and Substance Abuse Evaluation. The Substance Abuse Evaluation form is taken by the person seeking a license, or Petitioner, to a licensed substance abuse therapist and is completed by the therapist after certain written substance abuse tests have been taken and scored and an interview has been conducted.

The usual cost for this evaluation ranges from about $150.00 to $350.00, depending on the therapist you hire. There is absolutely no correlation between cost and quality of evaluation. Indeed, in my experience, the very best evaluations have come from those charging smaller fees, rather than those charging more. I can help refer you to an affordable, qualified person to get your Evaluation done.

The form is very specific about what must be included and it must be signed both by the licensed therapist/evaluator, and the Petitioner as well. To see the actual form and how specific it is, click here go to the Secretary of State's web site:

(Note that the request for an administrative review only applies to Michigan residents who already have a restricted license. In the case of those who have completely lost their license, (i.e., those whose licenses have been revoked) the request must be for an in-person hearing, and the Petitioner's affidavit is NOT submitted.)

Letters of Support are to be included with the request for hearing, but they are the subject of our next section, so we'll leave that subject for later

Thus, we begin with the Substance Abuse evaluation. Because of the importance of that Evaluation form, I always meet with my clients before they even think of getting it done. The Substance Abuse Evaluation is the very foundation upon which the whole case is built. If you are not properly prepared for the evaluation, then the rest of the process will be seriously compromised. You cannot build a winning case on a losing evaluation.

It is at this point that things get really technical and difficult. Remember, the Secretary of State is NOT allowed to grant a license UNLESS the Petitioner proves, by clear and convincing evidence, the issues outlined above, and any others in the rule that apply, although, in practice, those are the only real ones to be concerned with. That means that if you miss one little thing in your documents or testimony, or have even two conflicting dates in your paperwork, the Hearing Officer may very well feel that they MUST deny your petition. While that may seem almost mean-spirited, it is really the job, under the law, of the Hearing Officer, to look for those little mistakes. Imagine that they are sitting there with a checklist, and for each thing they review or ask about, they must check off either a “yes” or “no” box in answer to whether your evidence or proofs were good enough to meet that clear and convincing standard. If, at the end of your hearing, there are any checked “no” (or, to put it another way, if they are not all checked “yes”) then your appeal must be denied. That about sums up the job of the Hearing Officer and the burden you have in filing your appeal.

In my years of handling these cases, I am usually called by people in one of two categories:

1. Those who have tried to get their license back without a lawyer the first time, and have lost. They now realize the complexity of the situation, and are looking for someone who really knows this stuff.

2. Those who have never tried before and wonder if they even need a lawyer. The first group are generally easier to deal with. They understand how difficult the process is and are under no illusions about the need for an experienced and good attorney. Their concern is limited only to finding that lawyer. The first-timers tend to think that merely going in and showing that they haven't been drinking since their last drunk driving conviction is what's important. Nothing could be farther from the truth.

The plain fact is that it is difficult, at best, to get your license restored, and even the D.A.A.D. knows this. In it's Appeals Practice Manual, the Secretary of State notes that;

"The Department is aware that there is a perception that the agency "never returns a license" in habitual violator appeals..."

By now you may be getting the idea that winning your license back can be a difficult task and involves not only some pretty technical stuff, but a lot of experience as well.

I have inserted a link to the D.A.A.D. practice manual. Note that the latest update is from 2005. You can find it by clicking here.

I include it so that you don't have to take my word for how involved this stuff is. And if you're the type who wants to try it yourself the first time, then this manual contains pretty much everything you need to know about the law and rules, although it obviously cannot address the issues of importance to any particular Hearing Officer.

For those that try it on their own and lose, or try with an attorney not experienced enough in these matters and lose, they have actually made matters worse. Remember, if you lose your appeal, you cannot have another hearing for one full year. In second and subsequent hearings, the Secretary of State reviews the records and findings of all prior hearings. This means that above and beyond the issues all Petitioners must prove, second-time Petitioners must also show what they did to fix whatever was wrong the first time they tried, and depending on the problem, that can set them back either a little or a lot from the starting line. Thus, it pays to get it right the first time, because waiting another year and coming back farther behind than the last time is no fun.

Understanding the process and the importance of the Substance Abuse Evaluation at the very beginning is the only way to start the process correctly. Let's look at an example. I don't use this as a scare tactic, but one of the very first things for the evaluator to complete in the Substance Abuse Evaluation form is the Petitioner's lifetime conviction history. The state requires the dates of all prior convictions, and the Petitioner's BAC (Blood Alcohol Content) at the time of arrest. In some cases, a client will not know what their BAC was. That's understandable. However, if a person seems to remember, or thinks their BAC was .12, when in fact it was .17, and the Substance Abuse Evaluation lists that lower number, when in fact the actual number was .17, the Hearing Officer may well conclude that the entire Substance Abuse Evaluation is flawed, because it is based upon incorrect information.

What you aren't told is that the Hearing Officer has that information about the BAC in front of them at the time of the hearing. Now the Hearing Officer is wondering if you tried to scam the evaluation therapist about your alcohol use/abuse by giving a lower BAC number. Even if it was an honest mistake, the Hearing Officer can only guess at whether or not the evaluating therapist would have seen things differently if you had given the higher BAC number, or no number at all. Moreover, in such a case as this, the Hearing Officer may also conclude that some, or much of the other remaining information in the Substance Abuse Evaluation is unreliable.

In either case, because the Substance Abuse Evaluation has been found to be questionable, the Petitioner will lose, having failed to meet the standard of proving their case by clear and convincing evidence. Remember, my “checklist” example? The Secretary of State is required to deny the Petition Unless the Petitioner meets that burden of proof of clear and convincing evidence. It may seem nit-picky, but they are looking for that one little mistake in order to deny the Petition.

So, in the case where a Petitioner isn't sure about their BAC at the time of an arrest, the best, and only response, is "Unknown." That leaves the evaluator unencumbered by misinformation, and allows them to evaluate the Petitioner for either a low, medium, or high-level BAC, being free to determine the nature of the persons drinking history without incorrect and lower, wrong numbers. What's important is that you understand that this level of attention to and understanding of detail goes for every line in the evaluation.

When I handle a case, I meet with my client for a good 1and ½ to 2 hours to prepare them for the evaluation. I go over the substance abuse evaluation process and the form line by line. My client leaves the office fully prepared to undergo their evaluation. If the client needs a referral for an evaluation, I can help with that (and it's almost always the lower-cost evaluation I will refer them to). I leave no stone unturned and go over the testing procedures you will undergo in detail. I truly believe that anything less is just plain wrong and a recipe for failure. Remember, hiring a lawyer for this means a lot more than paying for some mouthpiece to sit next to you at the hearing. If you haven't been helped and prepared every step of the way to that hearing, then you may just be paying for someone to watch you lose, anyway.

Nor should you ever pay an unreasonable fee for this. My standard fee in these cases a flat $1600.00, broken into several payments. The final payment is due just prior to the actual hearing, which typically is set about one month after the request is submitted. Most people take about a month or two to get everything together, prior to submitting the hearing request. We'll normally have several meetings as we prepare. Some clients can get ready much faster, and some take longer. It's all up to you.

Once the evaluation has been completed, you'll be instructed to tell the evaluator not to send it in, but rather to provide it to you. Some evaluators, out of kindness, offer to send in the Request for Hearing and Substance Abuse Evaluation for you. Instead, you'll get a copy to me and then I carefully review it. One of my many jobs in these cases is to look for mistakes. If I find a mistake (and I do, from time to time), then it is far from too late to have it fixed. I have had cases where a prior appeal was denied the first time because either the Petitioner trying it alone, or the lawyer they had, (not me!) missed some error or oversight, or even a typo in the evaluation. Again, while this may sound harsh, it is the job of the Hearing Officer to deny the Petition unless the Petitioner proves by clear and convincing evidence the four issues noted above. To put it another way, it is NOT the job of the Hearing Officer to present evidence for the Petitioner, or to figure out contradictions, or to fix errors. The Petitioner is responsible for submitting documentation that meets the clear and convincing evidence standard. And rest assured, clear means clear, not slightly muddied by mistakes, contradictions, other unclear information. If there is an error or typo, the fault lies with you for submitting it, and there goes your chance for a license until another year goes by.

I liken this process to submitting a tax return. If you're W-2's show you made $40,000.00 last year, but you accidentally fill in $400,000.00, the IRS won't be sending you a refund; You'll be getting a bill, and a big one at that. The IRS, like the Secretary of State, looks only at the information you provide, and cross-references it with what is officially on file. They don't take responsibility for errors in your documents, they just act on them. It is your job to make sure everything you submit is accurate.

If I am your attorney, then it is my job to help and make sure you do that.

Next, in part two, we'll discuss the first of the main issues that you need to prove, by clear and convincing evidence, and how the Letters of Support you need to submit along with your Substance Abuse Evaluation and Request for Hearing must do that in order to win your case.

>> Next: The First Issue and the Letters of Support