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Habitual Alcohol Offender
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:
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:
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:
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:
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:
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:
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.
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