There are two kinds of administrative hearings for drunk driving cases. These are the implied consent hearing, which happens if you’ve allegedly refused a chemical test, and the driver license restoration hearing. Both kinds of hearings are discussed below to address license penalties and suspension:
In Michigan, a driver who has had his or her license revoked for multiple drunk driving offenses will be required to request a hearing with the Secretary of State’s Driver Assessment and Appeal Division (DAAD). In order for you to prevail it is important for you to understand the “ground rules” that will apply at this hearing. These rules are in many ways exactly the opposite of what they were for your underlying DUI.
So, unlike a drunk driving offense where the State must prove their case “beyond a reasonable doubt” (BRD) and where you were protected by the “presumption of innocence”, in a DAAD hearing you will have the burden of proof and the State will start out with the presumption that they will not be restoring your driving privileges.
It is important to understand that at the DAAD hearing, the burden of proof is on you. The hearing officer will start with the assumption that you have a substance abuse problem and that you are not going to obtain a license. It is up to you to provide clear and convincing evidence that your problem is under control and that you are of minimal risk for another impaired driving offense.
The reason for this difference in standards is because a DUI is a criminal case, and a driver license restoration case is an administrative hearing. In part, this is because the Constitution is thought not to apply to the driver license restoration process, and therefore the constitutional protections we enjoy when accused of a crime, also do not apply. Also, in Michigan revocations are actually lifetime revocations. After you serve the minimum applicable revocation period (usually one or seven years) you simply have a right to have a hearing at a predetermined sequence, usually once per year. You have no right to have your license restored.
Generally, in order to prevail at a DAAD hearing, you must show two things. First, that your substance abuse problem is under control and likely to remain under control, and second, that the likelihood that you will again drink and then drive while drunk is low or minimal. Several things are required to make this showing according to the necessary standard.
You must have a properly prepared and persuasive substance abuse evaluation. It will be important that the therapist preparing your evaluation have complete information about you, your treatment and relapse history, the number of prior alcohol-related offenses and of course, your sobriety date. You must show a minimum of either six or twelve months of complete abstinence from alcohol and drugs, but most people must show at least twelve months. The substance abuse evaluation must be accompanied by a 10-panel drug screen and a copy of the “testing instrument” must also accompany the evaluation. The substance abuse evaluation must give an appropriate diagnosis and prognosis, and must state in certain terms that you are at low risk if your license is restored.
You must also have three to five testamentary letters from friends, family, co-workers, clergy, support group members and other members of the community who know you well enough to write such a letter. To the extent that the writer would have such knowledge, these letters should include the same type of information as the substance abuse evaluation, i.e., your treatment and relapse history, the number of prior alcohol-related offenses and of course, your sobriety date).
Finally, your own sworn testimony at the hearing will be the third critical aspect to the evidence you will submit in hopes of meeting your burden of proof.
It will also be necessary for you to present some evidence of participation in a structured support group. This typically means AA, but attendance and participation in AA are not critical. The Barone Defense Firm has successfully obtained driver license privileges for drivers who did not participate in AA, but this does make the hearing much more difficult to win.
At the DAAD hearing, you will need to provide documented evidence of sobriety in several forms. These include:
Common reasons for losing include inconsistent dates in the substance abuse evaluation when compared with the letters, or in the letters themselves, letters that are not dated, letters that do not include a specific date for sobriety, or substance abuse evaluations that are not signed, do not contain a complete history, or are written by inappropriately qualified individuals.
On the other hand, the way to win is to make sure (or have your lawyer make sure) that there are no inconsistencies in the material you present at or before the hearing. You must also make sure that the substance abuse evaluation was administered properly, and also, make sure you are completely forthright and honest with the therapist so that he or she has all the information they need to properly evaluate your situation. If you’re not sure about your prior conviction history (can’t remember the dates of your prior offenses or even how many you’ve had), then do everything possible to obtain this information from the courts or from your prior attorneys.
No matter how you look at it, you should spend the money to hire the best lawyer you can afford. It’s far too easy to lose one of these hearings, and then you’ve started to dig an even deeper hole for yourself. This is because the Department will be reviewing all prior hearing records to determine why you were denied the last time around. This information will be used against you for your current hearing. So, not only does everything you present need to be consistent, it also needs to be consistent with the information previously submitted.
The hearing officer will also look to see if any statements were made in the prior record about your lack of truthfulness. If it appears that you were not completely truthful, or just weren’t complete, then this will make it harder the next time around. The more times you’ve been unsuccessful, the more you will be up against, and the more difficult each new hearing will be. This makes your first try the most important one.
If you win your DAAD hearing then you will almost certainly be required to have an ignition interlock device attached to your car for one year and only be granted limited or restricted driving privileges. After one year on the interlock, the device will be removed, and you will continue on the restricted license until you request and obtain another hearing. If you’re successful at the second DAAD hearing then you will probably be given full restoration. Thus, in even the best case scenario, this is a two-step process.
For out of state drivers the DAAD only has the option of giving a full restoration. This is the type of “clearance” required to obtain driving privileges elsewhere. This increases the “risk” on the hearing officer and makes out of state petitions all the more difficult to win.
If you don’t win this DAAD hearing then you will not be allowed to obtain a new hearing until another year has passed. This is because you’re only allowed one hearing per year. Thus, a one-year revocation can very easily turn into a two-year revocation. Again, this makes your choice of attorney and your preparation for the hearing that much more important.
Administrative hearings occur when you have allegedly refused to consent to a chemical test. This is called a violation of Michigan’s implied consent law. If you are charged with such a violation, then you must make a request for a hearing within 14 days of your arrest.
The rules provide that the day of your arrest (after which the designated period of time begins to run) is not included. The last day of the 14 day period is included, unless it is a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order.
A failure to make your demand within 14 days, as calculated by the formula above, will result in a one or two-year suspension of your driving privileges.
If you are not certain if you are being charged with this type of refusal, simply look at your paper license. If the upper left hand corner contains the indication DI-177, then there is no implied consent refusal, and will be no administrative hearing. If the paper license indicates DI-93, then the implied consent law does apply, and you must make a timely demand for a hearing to save your license.
Needless to say, you should always consult with an attorney before making any decisions or conclusions in this regard. The last thing you want to have happen is that your license gets suspended because you did not understand these rules or how they might apply to your situation. We will be happy to discuss this issue with you as part of your free consultation with our office.
Administrative hearings are also conducted when there has been a fatal crash as part of a drunk driving offense, and also, when the motorist has been convicted of multiple drunk driving offenses. These administrative hearings are beyond the scope of this writing. Again, we can answer questions about these types of hearings at your free consultation.
The following list of instructions applies for those drivers who have been charged with DWLS (driving while license suspended) for a non-alcohol charge. If these steps are followed PRIOR to your court hearing then there is an excellent chance it will help your case when you or your attorney engages in plea negotiations with the prosecutor.
1. Ask the Judge about the status of your driving record and whether you have any outstanding District Court tickets or Secretary of State Driver Responsibility Fees.
2. Ask for an adjournment so you can go to the District Courts and pay the tickets and the Reinstatement Fees, and so that you can get an Installment Agreement with the Michigan Department of Treasury for the Driver Responsibility Fees.
3. Go to the District Courts and pay your tickets. Bring the clearance forms for the paid tickets to a Secretary of State office and pay the Reinstatement Fees ($125). Ask for a copy of all your receipts.
4. Call the Michigan Department of Treasury (1-800-950-6227) and get an Installment Agreement for Driver Responsibility Fees.
5. Return to court with proof that the tickets were paid and that you made an Installment Agreement with the Michigan Department of Treasury. Bring all your paperwork to court, including receipts, clearances, and confirmation of an Installment Agreement.