Perrone Law, P.C
Get the Representation You Deserve
221 W. Lake Lansing
East Lansing, MI 48823
Phone: (517) 351-0332
Fax: (517) 913-6287
Habitual Offender License Appeals
If you are convicted of two (2) Operting While Intoxicated offenses within seven (7) years your driver's license will be revoked for one (1) year. You will be unable to apply for a restricted license during the period of the revocation. If you are convicted of three (3) Operating While Intoxicated offenses within ten (10) years your license will be revoked for at least one (1) year. Your license will be revoked for five (5) years if you are convicted of three (3) Operating While Inoxicated within ten (10) years and your license revocation or denial occurs within seven (7) years after the date of any prior revocation or denial. The only way to get you license back will be to file a Driver's License Restoration Appeal with the State of Michigan Driver Assessment and Appeal Division. Petitioners have the burden of proof by clear and convincing evidence that they have maintained a certain minimum period of abstinence from all alcoholic or low-alcoholic beverages and/or illegal drugs, and must demonstrate that their substance abuse or dependence issues are under control to restore their driver license. A completed Substance Abuse Evaluation must be submitted before a hearing is scheduled. If the hearing is held at a video site, in addition to the evaluation, all letters, documents, and video affidavit must be mailed or faxed before the case is scheduled. Petitioners are eligible for one (1) hearing per year. If unprepared for a hearing, petitioners should request it be adjourned rather than fail to appear.
Request for Hearing and Substance Abuse Evaluation Form
Evidence relevant to rebuttal of the prima facie case includes:
1) That the petitioner’s alcohol or substance abuse problems, if any, are under control and likely to remain under control.
2) That the petitioner represents a low or minimal risk of repeating the act of drunk driving or past abusive behavior.
3) That the petitioner has the ability and motivation to drive safely and within the law.
Evidence such as letters and documentation of sobriety, proof of involvement with a treatment program or support program, etc., are encouraged to assist the Hearing Officer in making a decision whether to authorize restricted or full driving privileges. Hearing Officers have the final decision-making authority in the Department. There is no intra-Departmental appeal, but petitioners may file a Motion for Reconsideration in the event of newly discovered evidence, or a mistake of law or fact.
The Hearing Officer shall require that the petitioner prove 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 SIX (6) consecutive months immediately prior to the hearing, unless the evidence considered at the hearing establishes that a longer period of abstinence, at least ONE (1) year of sobriety, is necessary.
Such evidence requiring a longer period of sobriety includes:
1) A BAC of not less than 2X greater than the statutory presumption.
2) Three or more convictions of substance abuse-related offenses.
• Relapsing after attempting to bring a substance abuse problem under control.
3) Being diagnosed by a professional as alcohol or controlled substance dependent.
4) Evidence of a prior Order of revocation or denial under Section 303 of the Act.
Breath Alcohol Ignition Interlock Device
MCL 257.322 requires that following a hearing held after October 1, 1999, if a Hearing Officer grants a restricted license, it shall include a requirement that an breath alcohol ignition interlock device (“Ignition Interlock”) be installed in any vehicle the petitioner intends to drive. The restriction will also be reflected on the master driving record (“MDR”), as follows: “MAY ONLY OPERATE VEHICLE EQUIPPED WITH INTERLOCK DEVICE FOR 1-YEAR FROM DATE OF RESTRICTION. ORIGINAL ACTION REINSTATED FOR VIOLATION.” A list of interlock installers is provided in the Appeal Order. Before the restricted license is issued, petitioners must present the certificate of installation at any Secretary of State branch office. Any restricted license issued after an appeal hearing October 1, 1999, must include an ignition-interlock restriction. Unless otherwise stated, the restrictions, if granted, are indefinite, but the interlock requirement will automatically expire at the end of one-year from the date the restricted license is issued at the Secretary of State branch office or for a longer period if it is extended for violations. If a petitioner intends to drive a company vehicle, notice will be sent to the employer advising them that an ignition interlock device must be installed on any vehicle the employee drives. An Ignition Interlock device final report is required at the petitioner’s next Driver License Appeal Hearing. Violations of the ignition interlock program are divided into “major” and “minor” violations. Minor violations result in a three-month Ignition Interlock device extension, making persons ineligible for a hearing at the end of the original one-year requirement.
Major Violations result in a reinstatement of the revoked/denied status, subject to an appeal hearing. Major violations include:
• A rolling re-test failure. (This is a random test required while driving.)
• Section 625g permit issued.
• Section 625l convictions. (These are crimes for tampering or circumventing the device.)
• Reports of tampering or attempts to tamper or circumvent without a conviction.
• Three minor violations within a monitoring period.
• Removal of an Ignition Interlock device except when it is re-installed within seven days. (The new certificate of installation must be filed with the Driver 31 Assessment and Appeal Division at PO Box 30196, Lansing MI 48909-7696.)
• Two months after the Ignition Interlock device is installed, three start-up test failures or lockouts within a monitoring period.
• Failure to report to the installer for monitoring.
The Rules allow Hearing Officers to give credit for time served if there is a break in the one-year requirement period. Providers shall submit violation reports to the Department. A final report will be prepared by providers and given to the petitioner to take to their Driver License Appeal hearing for review. This is important, as Hearing Officers will be looking for proof that the operator had the Ignition Interlock device installed for the minimum year required by Statute.