MICHIGAN DWI / UBAL / OUIL / OWI / OUIN -- DRIVER LICENSE
RESTORATION CASES

GENERAL INFORMATION REGARDING DRIVER LICENSE SANCTIONS

Based on the changes made to the Michigan drunk driving statutes in October 1999, the Secretary of State was given total power and authority over the administration of driver license sanctions for all drinking related traffic offenses. According to this statutory scheme, the first offender loses his/her license for a period of either 90 days for an OWI or 180 days for an OUIL. At the expiration of this period the driver need only go to his/her local Secretary of State Branch Office, pay a fee and apply for a new license. Provided there are no other impediments, the offender will receive then his/her license with full driving privileges.

The same is not true for the repeat offender, i.e., anyone with a prior drinking related traffic offense within either 7 or 10 years, depending on the circumstances. The second repeat offense carries a mandatory license revocation of a minimum one year period, and the third repeat offense carries a mandatory license revocation of five years.

Approximately 10 days after the Secretary of State receives notice of the conviction, the driver is notified by mail of the "to/from" dates, i.e., when the revocation starts and ends. At the end of this period the driver may not seek a new license at the Branch Office, but instead must file a petition with the Secretary of Stateís main office in Lansing. A hearing is then scheduled with the Driver License Appeal Division (DLAD). The "Petitioner" (person who qualifies for a hearing) then appears at this hearing and attempts to convince the hearing officer to return his/her driver license. If the Petitioner is not successful, he/she may not petition the DLAD again until the expiration of one year after the determination is first made.

WHAT FACTORS ARE CONSIDERED AT THE DLAD HEARING?

There are administrative rules that apply to these driver license hearings, and they set forth what the hearing officer may consider in making a determination if they will order that a driver license be issued. These are set forth in Rule 13. This rule indicates that the Petitioner has the burden of showing by "clear and convincing" evidence that (1) the Petitionerís alcohol or substance abuse problems (if any) are under control and likely to remain under control; (2) the risk of the Petitioner repeating his/her past abusive behavior is a low or minimal risk; (3) the risk of Petitioner repeating the act of drunk driving is a low or minimal risk; and (4) the Petitioner has the ability and motivation to drive safely and within the law.

The hearing officer will also require that the Petitioner provide clear and convincing evidence that he/she has completely abstained from the use of alcohol or controlled substances for a period of either 6 or 12 months, depending on the underlying circumstances.

If your driving record contains substance abuse indicators (OUIL, UBAC, OUID, OWI / OUIL with death or injury, child endangerment, implied Consent Suspension, X 3 accident, 625g permit), you will need to complete a substance abuse evaluation form and have it with you at your DLAD hearing.

WHAT EVIDENCE MAY BE PRESENTED?

The hearing officer may require that the Petitioner present evidence from not less than 3 different sources to support his/her behavior with respect to alcohol and/or controlled substances. These might include things like a urinalysis drug screen to show the absence of drugs or alcohol, a substance abuse evaluation (on the form provided by the Secretary of State), letters from persons that document the Petitionerís behavior, proof of involvement, both past and current, with a treatment program or programs, and proof of his/her past and current structured support program (this usually means AA). Your attorney can help you prepare and present your evidence in the light most favorable to you.

IF I WIN, DO I GET MY LICENSE BACK?

There are essentially three options, a total denial, a restricted license (with or without an ignition interlock device) or a full restoration. What type of license is issued is totally at the discretion of the hearing officer based on the evidence presented.

WHAT HAPPENS IF I LOSE?

You will basically have three choices. You may either (1) wait the year until you are next eligible for a new hearing; (2) file a petition for rehearing, or (3) appeal the hearing officerís determination to the Circuit Court. There are advantages and disadvantages to each of these options, and these should be discussed with your attorney.

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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
pursuant to the provisions of section 303(1)(d) or (e) or (2)(c), (d), or
(e) 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 rebuts the presumption established by
section 303 of the act by clear and convincing evidence. Evidence relevant
to such a rebuttal includes any 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 petitioner represents a low or minimal risk of repeating his
or her past abusive behaviors.
(iii) That the petitioner represents a low or minimal risk of 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.
(iv) That the petitioner has the ability and motivation to drive safely and
within the law.
(v) Such other showings as 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 those controlled substances prescribed
by a licensed health care professional, for not less than 6 consecutive
months, unless the evidence considered at the hearing establishes that a
longer period of abstinence is necessary. Such evidence includes any of the
following:
(i) That the petitioner has ever submitted to a chemical test that revealed
a blood alcohol content of 0.20% or more by weight of alcohol.
(ii) That the petitioner has 3 or more convictions of 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
relapses.
(iv) That an alcohol or substance abuse evaluation of the petitioner reveals
a diagnosis of alcohol or controlled substance abuse or dependency.
(v) Such other showings as are relevant to the issues identified in
paragraphs (i) to (iv) of this subdivision.
(c) If the hearing officer determines, pursuant to the provisions of
subdivision (b) of this subrule, that the petitioner must prove a period of
complete abstinence longer than 6 months, the reasons for that determination
shall be explained 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
contentions of abstinence.
(e) The hearing officer may require that the petitioner submit a current
alcohol or substance abuse evaluation on a form prescribed by the
department.
(f) The petitioner may submit any or all of the following:
(i) Letters from other persons that document his or her sobriety.
(ii) Proof of his or her involvement with a treatment program or programs.
(iii) Proof of his or her attendance at support group meetings.
(iv) Other relevant evidence.
(2) If a petitioner's application for a license has been denied, or if his
or her license has been revoked, pursuant to the provisions of section
303(1)(h) or (i) or (2)(a) or (b) or 320(2) of the act, the hearing officer
shall not order that a license be issued to the petitioner unless the
petitioner rebuts the presumption established by section 303 of the act by
clear and convincing evidence. Evidence relevant to such a rebuttal includes
both of the following:
(a) That the petitioner has the ability and motivation to drive safely and
within the law.
(b) Such other showings as are relevant to the issue identified in
subdivision (a) of this subrule.
(3) If a person's license has been revoked pursuant to the provisions of
section 320(2) of the act, the bureau of driver improvement of the
department shall not recommend that a license be issued 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) Such other showings as are relevant to the issue identified in
subdivision (a) of this subrule.

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