Habitual Alcohol and Drug Offenders

Under section 303 of the Michigan Vehicle Code [the Code; MCL 257.303] certain combinations of alcohol and/or drug-related convictions lead to a presumption that a person is a "habitual offender." The law requires the Secretary of State to revoke that person's driver license. The law also requires the Secretary of State to deny a license for that person until he or she meets certain conditions.

The types of convictions that lead to the presumption are:

• Operating While Intoxicated, which includes:
  • Operating a vehicle under the influence of alcohol or drugs, or a combination of alcohol and drugs.
  • Operating a vehicle with a bodily alcohol content [BAC] of .08 or higher.
  • Operating a vehicle with a BAC of .17 or higher [High BAC].
• Operating While Impaired by alcohol or drugs, or a combination of alcohol and drugs.
• Operating a commercial vehicle with an alcohol content of .04 or higher.
• A person less than 21 years old ("Zero Tolerance") operating a vehicle with:
  • An alcohol content of .02 or more, but less than .08
  • Any presence of alcohol in the body, other than from alcohol consumed as part of a generally recognized religious service or ceremony

Two of those convictions within 7 years, or 3 of them within 10 years, lead to the presumption. Only 1 Zero Tolerance conviction may count towards the combinations.

A conviction for an attempted offense is treated as if the offense were completed.

Convictions under local ordinances and other laws that substantially correspond to the provisions of the Code count towards the combinations. This covers both Michigan laws and ordinances and those of other states.

A first driver license revocation/denial is for a minimum of 1 year. A subsequent revocation/denial is for a minimum of 5 years, if it comes within 7 years of a previous revocation/denial.

After the minimum period of revocation/denial is over, the person may apply for a hearing with the Administrative Hearings Section to be considered for a driver license. The request for a hearing must be in writing. Information about that type of hearing is available from:

• The Order of Revocation/Denial
• Instructions sent to a person who requests a hearing
• A recorded message with instructions is available at telephone number 1-888-767-6424.

A current substance abuse evaluation must be submitted to DAAD before a hearing will be scheduled.

A person for whom a hearing is scheduled is a "petitioner."

A petitioner who is not ready to proceed may request, in writing, that the hearing be adjourned (postponed) to a later date. However, a petitioner should not assume that the hearing is adjourned until he or she is notified by the Administrative Hearings Section that has happened.

If a petitioner does not appear for the hearing, and an adjournment has not been granted, the petitioner is not eligible for another hearing for up to 1 year.

The law limits the authority of the Administrative hearings Section hearing officer to order a driver license for a habitual offender. The hearing officer cannot order a license unless the petitioner rebuts the habitual offender presumption by clear and convincing evidence.

The sorts of things a habitual offender petitioner must prove at the license appeal hearing include:

• His or her alcohol and/or substance abuse problems, if any, are under control and are likely to remain under control.
• He or she represents a low or minimal risk of again driving drunk and/or drugged, or repeating his or her past abusive behavior regarding alcohol and/or drugs.
• He or she has the ability and motivation to drive safely and within the law.
• He or she has the minimum period of abstinence.

Regarding abstinence, the petitioner must prove that he or she has completely abstained from the use of alcohol and drugs, except for controlled substances prescribed by a licensed health care professional, for not less than 6 consecutive months immediately before the hearing.

However, the minimum period of abstinence is not less than 12 consecutive months immediately before the hearing if the evidence presented at the hearing indicates that a longer period of abstinence is necessary. The sorts of things that would require a longer period of abstinence include:

• A chemical test showing an alcohol level of .16 or higher.
• Three or more convictions for alcohol and/or drug-related offenses.
• A relapse after an attempt to bring an alcohol and/or drug abuse problem under control. A relapse means the petitioner used alcohol or drugs on at least 1 occasion after attempting to bring his or her problem under control.
• A diagnosis of past or present alcohol or controlled substance dependency.
• A previous habitual offender revocation/denial.
• Other evidence that is relevant to these things.

In addition to the substance abuse evaluation required before the hearing is scheduled, other evidence is encouraged to help the hearing officer decide whether to order restricted driving or full driving. Such evidence includes things like letters and documentation of abstinence and sobriety, and proof of involvement in a treatment or support program. A petitioner may also have witnesses testify at his or her hearing.

If the hearing officer approves a petitioner to return to the road, a restricted license or full driving may be ordered. If a restricted license is issued, those restrictions may allow the person to drive:

• In the course of his or her employment.
• To and from any combination of the following:
  • The person's residence.
  • The person's work location.
  • An alcohol or drug education or treatment program ordered by the court. The court probation department.
  • Court-ordered community service.
  • Regularly occurring medical treatment for a serious condition for the person or a member of his or her household or immediate family.

Section 319(18) of the Code [MCL 257.319(18)] requires that a person with a restricted license carry proof of his or her destination and hours, and present that proof to a law enforcement officer if requested.

If a restricted license is granted to a petitioner whose license was revoked/denied as a habitual offender under section 303(2)(c), (d), or (g) of the Code [MCL 257.303(2)(c), (d), or (g)], the hearing officer must require the use of a properly installed and functioning Breath Alcohol Ignition Interlock Device [BAIID] on each vehicle the petitioner owns or intends to operate.

A record of the hearing will be made as required section 322 of the Code [MCL 257.322].

The hearing officer has the final decision-making authority in these cases. There is no further appeal within the Department of State. However, a petitioner may file with the Administrative Hearings Section a Motion for Reconsideration or Rehearing based on any of the following:

• New, material evidence that could not have been discovered with reasonable diligence before the hearing and produced at the hearing.
• An error of law at the hearing.
• A material mistake of fact by the hearing officer.

The decision may be appealed to Circuit Court, but the court's review is limited by section 322 of the Code [MCL 257.322].

Beginning October 31, 2010, if a BAIID is required by a restricted license, the driver cannot remove the device, or have it removed, without the approval of the Department of State.