A client charged with an OWI second offense in Michigan faces mandatory jail time and loss of license for at least one calendar year, more if there are additional prior offenses.  Assuming you have one prior DUI in the past seven years, you need to strongly consider these two issues.  

More importantly, what the heck is going on in your life that you picked up a second drunk driving? It doesn't make you a bad person, bad parent, employee, member of the community, or anything that can't be turned around, but it's really time to embrace help from outside sources.  

A sobriety court in Michigan could help you avoid that mandatory jail, and potentially give you the ability to drive a car in the near future vs waiting a full year.  The problem is your court MAY NOT have a sobriety court that is funded and approved by the State of Michigan.  And if it does and you do not live within the jurisdiction, the sobriety court could say you're not eligible.  

So here we are, we want to keep our license, avoid jail and get help, but all doors appear closed on us? Well not necessarily; I have successfully worked out sobriety court transfers in and out of many courts in Michigan.  It's not always easy to ask a court to sign away power over your case after breaking the law in their city, township or village - even within the county.  It's even trickier to get another court and probation staff to take one "someone else's problem" in a county or city which you didn't even break the law.  

So how do we do this? We get to work, and demonstrate hard work, motivation and we're worth the extra screening, time, paperwork and effort by all parties.  All of my clients begin a proactive program on day one, and this is the key part of working out this type of challenging transfer.  It's not easy to get people to agree without previewing your performance and motivations.  

If you or someone else has researched sobriety courts in Michigan, yet don't think you're eligible because of the court you're charged, let's talk about some options to get you where you need to be. 

As a former prosecutor I worked on 1000's of drunk driving cases, and one of the main concerns of the person charges was their ability to drive.  A person doesn't realize how important the ability to drive actually is until they are no longer able to do so.  It means you can't drive to work, school, drive your kids or family around, go grocery shopping, leave the house to eat or entertainment.  Losing your license can be a huge burden on a spouse or friends and family, and I have seen relationships ruined because someone can't drive their car.  

One role that a prosecutor has in Michigan is on a circuit court hardship appeal.  If someone violates the implied consent law for refusing a chemical test and that ruling is upheld on appeal, a petitioner (the defendant) has the option to file a hardship appeal with the circuit court on the basis of hardship if this is there first implied consent issue.  Some counties will have a representative from the Attorney General's Office as a representative for the Michigan Secretary of State, while others will actually have the county prosecutor act as the representative.  

The court is ultimately looking for a real hardship tied into your ability to work, go to school, perform obligations of your probation and other listed issues.  They also want to be sure that public transportation or reasonable alternative accommodations are not available to the petitioner.  If you lived down the block from where you work, you could not claim a legitimate hardship to get to and from work as a basis of receiving the license.  

Many people walk into court and simply say "here is where I work, and here is where I live, I need to drive".  That is lazy and not the most effective way to convince both a judge and prosecutor to OVERTURN a license suspension.  Think about what that means - you violated the law (implied consent law), your license was suspended because of it, and now you're asking for that decision to be overturned, and all you're going to do is show where you work and where you live?  

As a former prosecutor I witnessed too many of these situations go wrong, because people did not over-prepare and take the process as seriously as they should from day one.  As a proactive criminal defense attorney, we may be shifting gears from our criminal case to the circuit court, but we can use all of our proactive accomplishments for these stage as well.

The most important parts will be the substance abuse evaluation and any subsequent following of that recommendation along with the daily alcohol testing.   Neither is required, but the substance abuse evaluation is expected, and daily alcohol testing is usually the cherry on top of receiving the hardship license.  

I can't tell you how many times I've been out in the hallway with the prosecutor/AG representative with another attorney, and all they have is "well it's his first implied consent, and he works 20 miles from where he lives" - I sometimes wish I was the prosecutor again so I could tell that defense attorney - "well he shouldn't have refused the chemical test, I'm not changing the suspension for you" - that's just lazy lawyering - the client could have done the same thing in court.  

I have my substance abuse evaluation ready, AA meeting logs, alcohol insight class completion certificate, counseling letters and printout of our daily alcohol testing.  We're showing the prosecutor that from day one we were open about learning from the situation, followed the recommendation of the health care professional, and you should grant this hardship, because my client HAS NOT BEEN DRINKING and here is proof of that.  Not all petitioners are being alcohol tested or even on probation with a court so there's concerns about handing someone a license who is actively drinking - what better than to show proof that my client is not drinking? 

I always believe in building consensus with a prosecutor, because I learned if you want to go toe to toe with a prosecutor, they will prevail more than they are defeated, because a judge is naturally more familiar with that person and it's the more conservative thing to do.  Handing my client the ability to drive soon after a DUI incident is risky, and I acknowledge that - that is why my clients work their butts off to show they should be granted the opportunity to earn back the trust of the prosecutor, judge and community.  

If I can get the prosecutor to sign a stipulated order for a hardship license in the hallway and we can walk into the courtroom and BOTH tell the judge we want petitioner to receive a hardship license, what's the judge going to do? Say no? Probably not.  Some judges will still have concerns, especially newer judges or judges who are not that familiar with these type of proceedings, but I use the same proactive tools with the judge to get my client over the hump, and get them back on the road. 

When charged with a second offense drunk driving, the two major concerns are mandatory jail and loss of license for a year.  Under the law, a second offense DUI has 5 days mandatory jail attached to it, which is the minimum.

Many judges in Michigan will sentence clients to a longer term depending upon the facts of the case and the client's background and criminal record.  

The judge does not decide the fate of your license, but the Michigan Secretary of State will take action on your license; if you have 2 convictions within 7 years, your license is suspended for a full 365 days.  There are 2 ways to avoid this outcome.

Scenario #1 - You must get your case dismissed with a pretrial motion or win at a bench or jury trial.  Depending upon the facts of your case, there may be a fruitful pretrial issue such as a bad stop, bad arrest or a problem with the evidence such as the blood or breath test.  

Scenario #2 - You enter a sobriety court which is licensed by the State of Michigan.  In Michigan, a sobriety court entry can override the one year suspension by the Secretary of State and grant a restricted license.  An interlock will be required, and there is a 45 to 60 day waiting period prior to receiving the restricted license.  

Not all courts have a sobriety court, and some courts require you to live in the jurisdiction to enter the court even though you offended in that court's jurisdiction.  What do you do if you're not eligible for the sobriety court, or your court doesn't have one? 

For clients in this situation, we seek a sobriety court transfer.  Is that easy? No.  Do most people receive approval? No, but my clients have had a lot of success in the past. 

Why? Because my clients get to work on day one and we run down the sobriety court path on our own, mimicking many of the requirements of the court such as daily alcohol testing, counseling, AA attendance and education.   If we can show a sobriety court that the client is already doing what would be required of them, they are more open to "taking a chance" on my client. 

Clients contact me all of the time with felony DUI cases; in Michigan, three DUI's can happen over a lifetime, even if the prior cases are 10 and 30 years in the past.  Many counties in Michigan will not reduce or dismiss the felony charge, and consider a misdemeanor.  That's until our law firm arrives on the case.  

Because we're so proactive from day one, and make real changes in the life of the client, we're able to work out some creative deals with the prosecutor and judge to accomplish some big goals. Recently out law firm was able to take a felony DUI third offense and turn it into a misdemeanor DUI, which saved the client mandatory 30 days jail and up to 5 years in prison and we saved her driver's license by getting her into a sobriety court, because Michigan still follows the 3 DUI's in 10 years for purposes of your driver's license, and the sobriety court allowed her to avoid a hard suspension.

This deal was made in a county that had not reduced a felony DUI to a misdemeanor in years - other attorneys recognized this, and were shocked by the result - they asked what our secret sauce was for getting this result.  It's simple, work hard, keep your head down, commit to making changes in your life - go harder than you've ever gone before, and kick some ass.  Hard work is not a guarantee to success, but it's your best and only chance at shocking the world. 

If you're arrested for drunk driving in Michigan, and you blow over the legal limit of 0.08, the police will take away your physical license.  You will be issued a temporary paper license, but that license is a full license without restrictions.  Your ability to drive is not impacted at this point.  

Your license will only be impacted if your case is resolved where you plead guilty or no contest to a drunk driving charge or something like reckless driving.  Even with this plea, nothing happens to your license when you leave the courthouse; the license action is only put in place once the Michigan Secretary of State receives notice of your case outcome, and takes action.  You will be sent a letter from the SOS, which informs you of any suspension or restrictions.  There is usually a grace period as well to make sure the letter is received and you're on notice of the action.  

When charged with a DUI in Michigan, there are a number of consequences; one of those consequences is impact on your driver’s license. The court has no say over what happens to your license, because the Michigan Secretary of State is the lone authority on what happens to your ability to drive if convicted of DUI offense.

The Michigan Secretary of State can only sanction a Michigan driver’s license, which means if you have an out of state license, Michigan cannot do anything other than control your ability to drive within the State, but not outside of the State.

The Secretary of State can either restrict, suspend or revoke a driver’s license. A restriction allows some driving, typically to school, work, medical appointments, community service, counseling, court and a few other exceptions. A suspension can take away the driver’s ability to drive for a limited period of time, and once the time passes, the driving privileges resume. Revocation is a lifetime loss of driving privileges, but they can be restored by the Secretary of State at a future, but uncertain date.

License impact depends upon the type of conviction. Here is a brief breakdown of the most common offenses.
* Impaired Driving - 90 days restricted driving
* Zero Tolerance - 30 days restricted driving
* Intoxicated Driving/Drugged Driving - 30 day suspension, 150 days restricted
* Super Drunk - 45 days restricted driving, 320 restricted with ignition interlock installed
* Second Offense - 1 year suspension
* Third Offense - license revoked, eligible to reapply after 1 year

In Michigan, the criminal penal code says it’s a second offense if you have two convictions within seven years; the date of offense is used on the subsequent offense to make this determination. So if you were convicted on September 2nd 2001, you would fall into the second offense category if you are subsequently arrested on or before September 2nd 2008. For a third or more offense, there is no time limit; it’s simply within a lifetime. So you can have a conviction from 1950, 1999 and 2016.

There isn’t much strategy in timing when it comes to the criminal code; the best approaches are defeating the case, or resolution with a reduction, sobriety court or sentencing agreement. While timing for the criminal code can’t be impacted, it is the exact opposite when it comes to the Secretary of State.

The Secretary of State has the same seven year mark for second offenses, but they use the conviction date for measuring this period. This means that if you were convicted of a DUI on September 2nd of 2001, and subsequently arrested in the summer of 2008, there is a lot of strategy involved. If my client has decided to resolve the case or even go to trial, we make sure the “end” of the case takes place after September 2nd of that year, which would put us outside of the seven year window. The client if convicted would be treated as a first offender outside of the seven year window.

This strategy could mean the difference between losing his/her ability to drive for a full year vs being restricted for 90 days. This same strategy is even more crucial when it comes to third offenses.

Unlike the criminal penal code, the Secretary of State does use a ten year window. Many of my clients have two very old DUI’s from 10 to 20 years ago. While they will still be charged as a third offender, they can escape the license sanctions for a third offender with the right timing. There’s a chance a third offender could be treated as a second offender, or even a first offender with the right timing strategy.

In Michigan, sobriety courts are voluntary programs for a defendant’s to enter as part of a drunk driving case.  Sobriety court is for repeat offenders or offenders with very high BAC levels.  Defendants are not forced into sobriety court, but it’s usually an alternative to jail time, and an opportunity to maintain your ability to drive when your license would otherwise be taken away.
 
When you enter sobriety court, you’re committing yourself for 12 to 24 months of drug and alcohol testing, sometimes daily, and a total commitment to sobriety; violations will send you to jail for the maximum allotted penalty.  Essentially, you’re avoiding jail upfront, so if you mess up, you get the maximum.  

If you enter a sobriety court which is approved by the State of Michigan, you could be eligible for a restricted driver’s license, which you would otherwise not receive without sobriety court.  For example, if you are convicted of a second DUI within 7 years, your license will be gone for a year; enter sobriety court, and you might be back on the road in 45-60 days.  

Sobriety courts are a great option for a client who is seeking the available resources of the criminal justice system, and are ready to embrace close supervision.  The goal of the sobriety court is to reduce repeat offenses, get people sober, and head in the right direction.  

Not all courts in Michigan have a sobriety court, and if they do, most require you to live within the jurisdiction of the court due to the need to supervise you when you are outside of the courtroom walls.  

If my client is charged with a second offense DUI, or facing jail time for their case, and that particular court has sobriety case, then we put it on the table as a legitimate option.  Because all of my client’s are proactive from day one, it’s an easier transition into the sobriety court mindset.  Both the client and the sobriety court must agree to begin a working relationship.  A client must be deemed a “good candidate”.  

I have my clients screened and assessed early in the case by a substance abuse counselor, attend AA, participating in community service, alcohol and drug testing and engaged in substance abuse education.  If my client selects sobriety court as their best path, we’ve already demonstrated a genuine desire to make changes, and head down the right path going forward.  The interview and screening process goes a lot smoother when we’ve already checked off a number of boxes for the sobriety court team.  Many times, my clients receive shorter stints in sobriety court, because they’ve been deemed to have made progress, which leads to obtaining a driver’s license in a shorter period of time.  

When jail and loss of license is on the table, sobriety court is a great option when the strengths outweigh the weaknesses of a client’s case.  
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I’ve had clients save themselves months and years in jail, because together we put together a plan to earn a spot in sobriety court.  The same clients who were going to lose their job, have to drop out of school, sell their homes and potentially lose their family were able to avoid that because they earned their license back by entering sobriety court.  When a client of mine opts for sobriety court, I am extremely proud of them, because they know it won’t be easy, but it’s the best thing for them in both the short and long-term.  ​

When a client hires me to work on their DUI case, and there’s an implied consent issue, we always discuss the backup plan of a circuit court appeal for a hardship license.  Many times, the circuit court appeal stands a better chance at saving my client’s license than winning at the implied consent hearing.  

The circuit court appeal happens after a decision is made on the implied consent hearing; this must happen within 63 days after the order of suspension is entered.  The time can go beyond this with showing of good cause (up to 182 days).

The petition must be made in the circuit court of the county of arrest, and you’re only eligible on your first implied consent refusal.  The standard to receive a hardship license is “hardship”.  The petitioner must show why not having the ability to drive is impacting their job, school or other obligations.  There cannot be an alternative option, hence the hardship, such as someone else to drive you.

I will have a client put together a comprehensive work or school schedule with maps and directions.  We will research bus routes, cab fares and Uber fares.  The goal is to show that driving to work is the only option, and there is no family member, friend or co-worker to assist.  It would be a financial hardship and/or a huge time hardship to take cabs or public transportation.  
Along with showing the hardship, my clients are already in counseling, going to AA, alcohol and drug testing and participating in community service.  We need to show that if a judge is going to restore driving privileges that you’re not a threat on the road, and you have everything under control.  

The first step is filing the petition with supporting evidence of the above proactive steps and transportation documentation.  We then attend the court hearing where the Secretary of State can send a representative.  

If handled directly, I can usually sit down with the Secretary of State person and stipulate to granting the hardship license.  This means we no longer need to convince the judge, and most judges will defer to the two parties.  Every time, but one time I was able to convince the Secretary of State representative to sign off on an order before the hearing.  The one time that didn’t happen, the representative did not show and the judge granted it anyway.  
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From there we file the order with the Secretary of State and the new restricted license is granted and arrives in the mail soon after.  This is how you win when it comes to hardship licenses in Michigan. ​

In Michigan, when you operate a motor vehicle, you consent to certain rules.  The rule book in Michigan, specifically under 2014 PA 315, provides that a person who operates a motor vehicle on a public highway or other place open to the general public or generally accessible to motor vehicles within this state, including an area designated for the parking of vehicles, is considered to have given consent to chemical tests of his or her blood, breath, or urine to determine the amount of alcohol, controlled substance, or another intoxicating substance, or any combination of them, if the person is arrested for one of the enumerated crimes in the statute, including the principal drunk driving offenses along with several other major driving offenses, and the officer has reasonable grounds to believe the driver was operating a vehicle in violation of section 625 of the Michigan Vehicle Code.

What does all that mean? It means when you drive and you refuse you provide a chemical test sample, the officer can seek a warrant and force you to provide a sample, which is typically a blood draw at the hospital.  This law is in place so people can’t escape providing important evidence in their DUI case; without a chemical test, prosecutions of drunk driving cases would be a lot less effective.

If arrested for a DUI in Michigan, the officer must read the Defendant his/her chemical test rights, and be asked to take a chemical test; this test can be blood, breath or urine.  This test can look for alcohol, drugs or both.  Along with this mandated test, the Defendant may request his/her own test.  

If the Defendant refuses the test, they will be forced to have blood drawn via court order, and have an automatic one year suspension of their driver’s license along with six points added to their driving record.  This happens no matter the outcome of the criminal case.  

The Secretary of State has their own power to do this to your license merely based on the refusal.  The only way to possibly prevent this suspension is by requesting an implied consent hearing within 14 days.  

The request information and form are attached to the temporary license provided by the police officer at the time of release from jail.  The officer will be subpoenaed to this hearing where the hearing officer will evaluate four issues; the rules of evidence do not apply, and the criminal standard of reasonable doubt is not in place.  

Here are the four issues which can be explored at this hearing.  You only need to win on one to win the hearing.  Anytime a client finds themselves in this position we file the hearing request and prepare to win.  Unfortunately many clients contact me when it’s too late, and do not realize the consequences of the situation.  

(a) Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in [MCL 257.625c(1)].
(b) Whether the person was placed under arrest for a crime described in [MCL 257.625c(1)].
(c) If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable.
(d) Whether the person was advised of the rights under [MCL 257.625a(6)].

The burden is on the police officer to show compliance with all four issues.  While that appears to be a favorable occurrence, the standard of proof is a lot lower than criminal cases.  The standard of proof at the hearing is a preponderance of the evidence (51 vs 49 percent).  If the officer doesn’t show within 20 minutes of the scheduled time, the matter is dismissed; if the client does not show, the suspension goes into place on default.  

So how do I approach implied consent hearings? Well the first part is obtaining all of the evidence; the videos, audio, dispatch, police reports, accident reports etc.  Sometimes an implied consent hearing happens before a client is even charged, because blood was drawn, which could take months to get results for the prosecutor to charge with, but the Secretary of State goes forward with the hearing.  We’re looking to attack all four issues if possible, but typically you’re lucky to find an issue with one rather than all four.  

The first issue is “whether the peace officer had reasonable grounds to believe that the person had committed a crime described in” MCL 257.625c(1) of the Michigan Vehicle Code.  This doesn’t mean a crime actually had to be committed, but rather than officer had a reasonable believe that one had been committed; a pretty low standard.  

Typically the officer will provide enough testimony to win on this issue.  One situation where my client can win on this issue is if the officer had very little to base his arrest on.  If the officer’s testimony is thin, there’s a chance of prevailing on this issue, but it’s usually not the most fruitful.
The second issue that the police officer must prove at an implied consent hearing is that the person was placed under arrest for one of the crimes specified in MCL 257.625c(1).  What I am looking for on this issue is the officer to testify to the crime of arrest; simply stating an arrest was made is not enough, because there are many reasons to arrest that are not under the implied consent law.  

If you’re arrested for reckless driving this is not under the implied consent law.  Further, the person who refuses the chemical test must actually be under arrest when asked; if they are not yet under arrest then the law doesn’t apply.  This situation is possible to identify by watching the videos and listening to the audio.  Further, the arrest must be valid; if through cross-examination we can exploit an illegal arrest, a client can prevail on this issue.  

The statute states that the third issue that must be proved at an implied consent hearing is if the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable.” MCL 257.625f(4)(c).   

This is fact specific, and could involve someone outright refusing or someone who attempts to take the test, but either the machine or the operator determine that the Defendant is not making a sincere effort to blow into the machine.  An interesting situation arises when a client refuses but shortly thereafter says they will indeed take the test.  

Most officers will allow it as it is a lot easier to do a breath test vs going to a hospital for a blood test and to acquire a warrant in the middle of the night for a judge.  This is called curing the refusal and the hearing officer will hear all sides of the story to determine the reasonableness of the refusal if the officer doesn’t allow the curing.  

Some common themes that arise with the third is choice of test.  Under current Michigan law, the Defendant cannot choose which test to take.  So if a Defendant says, yes I agree, but I will only take a urine test, that will be a refusal if the officer wants to do blood or breath.  The choice is with the officer only.  Another theme is right to counsel; Michigan courts have long held that the defendant has no right to counsel before or during a police-administered chemical test inasmuch as the testing procedure is not considered a critical stage in the criminal proceedings.

Although this seems like a closed issue; courts have said that if a Defendant requests to call a lawyer as long as it’s a reasonable request and does not delay the process, a phone call is allowed; if that is denied then the refusal may not be reasonable and the case can be tossed out.  Ultimately, the issue is whether the driver’s refusal was reasonable based on the totality of circumstances existing at the time of the refusal.

If a client has hemophilia, diabetes or a condition requiring the use of an anticoagulant under the direction of a doctor then the Defendant does not need to consent to the withdrawal of blood.  It would be reasonable under the law for this person to refuse, and the sanctions would not apply.  
The fourth and last issue the police must prove at an implied consent hearing is that the Defendant was advised of the chemical test rights stated in MCL 257.625a(6)(b), which provides that a person arrested for one of the crimes enumerated in MCL 257.625c(1) must be advised of all of the following:

(i) If he or she takes a chemical test of his or her blood, urine, or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer 1 of the chemical tests.
(ii) The results of the test are admissible in a judicial proceeding as provided under this act and will be considered with other admissible evidence in determining the defendant’s innocence or guilt.
(iii) He or she is responsible for obtaining a chemical analysis of a test sample obtained at his or her own request.
(iv) If he or she refuses the request of a peace officer to take a test described in subparagraph (i), a test shall not be given without a court order, but the peace officer may seek to obtain a court order.
(v) Refusing a peace officer’s request to take a test described in subparagraph (i) will result in the suspension of his or her operator’s or chauffeur’s license and vehicle group designation or operating privilege and in the addition of 6 points to his or her driver record.

These instructions are listed on the back of the Officer’s Report of Refusal to Submit to Chemical Test and Michigan Temporary Driving Permit, which is handed to you.  An officer will typically read it word for word and let you look at it; the officer will usually put his initials on the paperwork to indicate it was read.  When I am reviewing this issue, I review the form itself, and the audio and video, which may have recorded the reading of the rights.  

What I’m looking for in this situation is for the video or audio to show that the instructions were not read properly or the conversation between my client and the police officer contained inconsistent or improper information.  
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Sometimes a Defendant asks for additional information or advice; the officer is trained to not engage in these requests, and just stick to the script, but many officers don’t do that.  If the officer says the wrong thing or misleads or confuses my client outside the chemical test rights then we may have a winner on issue four. ​

The Michigan Vehicle Code mandates a driver responsibility fee payable to the Secretary of State, on notice of a conviction, for drivers convicted of certain offenses. This fee is in addition to any other penalties. The driver responsibility fee for drunk driving offenses are

1. $1,000 each year for two years after conviction for OWI, OWI causing serious injury, and OWI causing death (MCL 257.732a(2)(a)(iii)); and
2. $500 each year for two years after conviction for OWVI, zero tolerance, child endangerment, and OWPCS (MCL 257.732a(2)(b)(i)).

Note that 2014 PA 250 added MCL 257.732a(11) to reduce and phase out the fees starting October 1, 2015:

(b) A fee assessed under subsection (2)(a) or (b) shall be reduced as follows:
(i) For a violation that occurs on or after October 1, 2015, 100% of the fee shall be assessed for the first year and 50% for the second year.
(ii) For a violation that occurs on or after October 1, 2016, 100% of the fee shall be assessed for the first year and no fee shall be assessed for the second year.
(iii) For a violation that occurs on or after October 1, 2018, 50% of the fee shall be assessed for the first year and no fee shall be assessed for the second year.
(iv) For a violation that occurs on or after October 1, 2019, no fee shall be assessed under subsection (2)(a) or (b).

Failure to pay the fees will result in the suspension of the offender’s license. MCL 257.732a(5). A payment plan for fees above $500 is allowed under MCL 257.732a(4). 
The Secretary of State may authorize payment by installment for a period not to exceed 24 months. MCL 257.732a(4). Alternatively, the driver may engage in community service. Id. If payment is not received or an installment plan is not established after the time limit (30 days) required by the Secretary’s second notice, the Secretary must suspend driving privileges until the assessment and any other fees prescribed under the Michigan Vehicle Code are paid.

Under MCL 257.319(18), a person with a restricted license is allowed to drive in the course of his or her employment or occupation and to and from any combination of the following:
(i) The person’s residence.
(ii) The person’s work location.
(iii) An alcohol or drug education or treatment program as ordered by the court.
(iv) The court probation department.
(v) A court-ordered community service program.
(vi) An educational institution at which the person is enrolled as a student.
(vii) A place of regularly occurring medical treatment for a serious condition for the person or a member of the person’s household or immediate family.
(viii) An ignition interlock service provider as required.

You must “carry proof of his or her destination and the hours of any employment, class, or other reason for traveling and [must] display that proof upon a peace officer’s request.” MCL 257.319(18). There is no provision in the statute that defines proof of destination. To comply with the intent of the statute, it is recommended that anyone using a restricted license for work purposes should have a letter from the employer stating hours and territories and places visited. A college student should carry his or her class registration papers. Carrying a probation order should speak to probation visits, community service, and court-ordered alcohol or drug treatment. If driving for medical treatment purposes, your client should carry the doctor or medical facility’s phone number to confirm the appointment.

The arresting officer must confiscate the Michigan license of a driver who allegedly either (1) refused a request for a chemical test at the time of the arrest or (2) took a chemical test that was offered by the officer or performed under a court order and that reveals an unlawful alcohol content. Out-of-state driver’s licenses are not subject to confiscation. The officer then issues a temporary driving permit to the driver. MCL 257.625g(1). As used in this provision, unlawful alcohol content means the following:
(i) If the person tested is less than 21 years of age, 0.02 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(ii) If the person tested was operating a commercial motor vehicle within this state, 0.04 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(iii) If the person tested is not a person described in subdivision (i) or (ii), 0.08 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2018, 0.10 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

​License lost due to a drunk driving conviction?

​If you've been arrested for a DUI in Michigan, it's likely that your driver's license has been confiscated.The police are required to confiscate your license if you fail a chemical test (0.08 or above) or refuse to submit to a chemical test pursuant to a court order.

If you fail a breath test, you will be given a DI-177B license, which is a temporary driving permit.  If you submitted to a blood or urine test and the results are not available yet, you will be given a temporary license, but if the results come back under a 0.08, you will be re-issued your ordinary license.

If you refused to give a sample, you will be issued a temporary driving permit along with a form (DI-93) that is a request for an implied consent hearing, which should be sent to the Driver Assessment and Appeal Division (DAAD).  You have 14 days from the date of your arrest to request an implied consent hearing from the DAAD, which allows you to make the police prove four issues at a hearing.  If you do not request a hearing within 14 days this will cause an automatic one year suspension of your driver's license, and a two year suspension if this was your second refusal within seven years.

Once the implied consent hearing is requested, it must be scheduled within 45 days, and be resolved within 77 days.  With these particular scheduling procedures, it's likely that you will appear in court for the misdemeanor charges before attending the implied consent hearing, which is to your benefit.  Having a pre-trial prior to the implied consent hearing will allow your attorney to receive discovery including all police reports generated from your arrest.

A first refusal results in a one-year Michigan driver's license suspension, and a second refusal in seven years results in a two-year suspension of your license.  At the hearing there are four issues.  The answer must be yes to all four issues in order for it to be a valid refusal.

1 - Did the police officer have reasonable grounds to believe the defendant committed a crime listed in MCL 257.625c(1)? (Covers must drunk driving offenses)
2 - Was the defendant placed under arrest for one of these crimes?
3 - Did the defendant reasonably refuse to submit to a chemical test requested by an officer?
4- Was the defendant advised of his or her chemical test rights?

First time offenders can petition the circuit court for a restricted license, but repeat offenders cannot.  The refusal under the Implied Consent Act is a civil infraction, which has no affect on the criminal proceeding, but it is also not discharged if you are acquitted on the Michigan drunk driving charges; it's a totally separate charge.  In addition to license suspension, refusing a chemical test could result in six points on your license.  So you can be acquitted of drunk driving, but still get six points on your license for refusing a chemical test.

There is no plea bargaining at the implied consent hearing, but if the officer does not show, you will keep your license.  The defendant has the opportunity to testify at the implied consent hearing, but does not have to take the stand.  The defendant's testimony should only address the four issues at hand.

If you fail to appear in court or fail to pay fines or costs, the court will inform the secretary of state who must then suspend your Michigan driver's license; the license will not be reinstated until the court informs the secretary of state that the matter has been resolved.

Appealing the DAAD?

​If your license has been revoked by the Secretary of State, you can appeal for reinstatement with the Driver Assessment and Appeal Division (DAAD).   The DAAD is the only avenue to appeal a revoked or denied license due to multiple Michigan drunk driving offenses.  If your license is currently revoked, there is no immediate action to take.

If you have entered a sobriety court, you may have been issued a restricted license.  The DAAD is the governing body that approves the removal of an interlock device under the Michigan Super Drunk Law.

If you are serving your first revocation, and your one-year non-appealable revocation has passed, you may be eligible to appeal the subsequent denial of the license to the DAAD.  If this is your second revocation, you must wait a five-year period before being able to appeal a subsequent denial.

During your mandatory suspension, the DAAD will send you a package containing material that is meant to guide you through the early steps necessary to improve your chances of winning an appeal.  The packet is geared toward substance abuse, and it gives you the ability to setup an appointment with a substance abuse therapist or agency for an interview and evaluation.

When you go to your interview, you should bring a copy of your driving record from Michigan, and any other statement which you have lived in the past ten years.  You should also bring letters of sobriety, therapy, treatment and your substance abuse evaluation form, which was mailed in your packet.

The standards for a repeat drunk driver to receive a restricted license in Michigan are the following:

 - The person seeking appeal must show by clear and convincing evidence that any alcohol and substance abuse problems are under control and likely to remain under control

- The risk of  repeating past abuse is low or minimal risk.

- The risk of repeating the act of drunk driving is low or minimal risk

- The person seeking appeal has the ability and motivation to drive safely and within the law

- You must prove that you have abstained from the use of alcohol or controlled substances for everywhere from 6 to 12 months

At the hearing you should have a witness who will testify to your sobriety; the more contact this person has had with you, the better witness they will make.  You should be ready to discuss the steps you have taken to find sobriety in great detail.  If you are denied a Michigan restricted license, the hearing officer may want you to seek further treatment before driving.

If you are successful in receiving a Michigan restricted license, you must have an ignition interlock device on your vehicle. Once you have the restricted license, you can eventually apply for an Administrative Review, which is a hearing to be granted full driving privileges.  Sometimes it is advisable to have a face-to-face meeting for this review, but it is not mandatory.  For this hearing, you will also need to submit community proofs from three sources that speak to your sobriety.  Only one administrative review is allowed per year.  You should have an attorney represent you during this process

The implied consent law  became effective in Michigan on November 2, 1967. The law provides that any driver operating a motor vehicle on state highways in places open to public view or in places generally accessible to motor vehicles must consent to a chemical test for bodily alcohol content (BAC) if he or she is arrested for certain violations. 

A driver’s refusal to voluntarily take a chemical test may result in the suspension of his or her license by the Secretary of State. It is thus possible for a driver to be found innocent of a drunk driving offense and still lose his or her license if he or she refuses to take a chemical test. 

If the driver consents to the breath test, he or she has satisfied the requirements of the implied consent law and need not consent to any other kind of chemical test, including blood or urine tests. (Saliva tests are no longer given.) A driver must submit to the police-administered breath test before pursuing a test of his or her own choice.

If you've refused the chemical test, you will have 14 days to appeal this suspension, and have a hearing to determine whether or not you indeed refused, and if your license will be suspended for a year.  ​