DLR Judge Wrongly Interprets Sobriety Law

by baronedefensefirm on May 7, 2009

As has been explained in various articles throughout this web site if you are a repeat drunk driver in Michigan then you will have your driver’s license revoked for life.  After that happens, the only way to get your license back will be to file a petition for Driver License Restoration (DLR).  You will have to wait at least one year before you may do so, but you may be required to wait a minimum of five years before first requesting a hearing.

Once your waiting period has run, Rule 13 will govern your DLR hearing.  According to Rule 13, at the DLR hearing the petitioner (person requesting the license) must show a minimum period of 6-12 months of sobriety.  This time period will depend on the facts and circumstances of the case, but in most instances you must show at least one year of total abstinence from alcohol and drugs.

Michigan statutes also cover this sobriety issue.  MCL 257.313 (1)(b)(iii) says that a petitioner may be required to establish 12 months of sobriety if “[t]hat petitioner has attempted to bring his or her alcohol or controlled substance abuse problems, if any, under control, but suffered a relapse by using, on at least one occasion, alcohol or a controlled substance…”

Now, the question that often comes up in a DLR hearing is whether or not your time on probation counts as sober time?  Some hearing officers believe that it does not.   This creates a dilemma because a person will often still be on probation when they first try to get their license back.  In fact most repeat drunk drivers in Michigan will be on probation for a minimum of two to three years, but can request a DLR hearing after the first year. Consequently, if the hearing officers are correct, then the one year waiting period set forth in Michigan’s statutes might actually become three or more years.

It is our opinion that the hearing officers that believe this to be true are clearly wrong.  This is because their opinions are based on the case of Deborah Braddock Reynolds v. Secretary of State, Michigan Court of appeals, Docket number 269714, dated July 13, 2006. The court in this case ruled that ‘[B]ased on the evidence presented, the hearing officer’s determination that petitioner was required to maintain at least 12 months of current abstinence or sobriety outside of the controlled environment of imprisonment or parole….’ was appropriate.

Ok, so yes, I agree that time of incarceration does not count, but the case says nothing about probation.  Michigan law makes it clear also that probation is NOT the same thing as incarceration. Parole is also a different story, but it is my opinion that sober time on probation clearly counts.


This post was written by...

– who has written 203 posts on Michigan DUI and License Restoration Lawyers.

Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.

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