Unrecorded convictions - how they affect daad appeals

By Michael Brock and Matthew Zick

Pursuant to MCL 257.732 the clerk of the court is obligated to send an abstract of conviction to the Secretary of State not more than five days after a conviction.  However, as a practical matter, in certain courts these abstracts of conviction are routinely not getting processed.  As a result the SOS is not being notified of the conviction.

This is particularly impactful in a DUI case.  When the client is initially arrested, he is given a 625G permit (paper driver’s license) and his picture driver’s license is confiscated.  The notation of this issuance is entered into the LEIN (Law Enforcement Information Network) and appears on the client’s master driving record.  The 625G permit serves as a red flag to the hearing officer in a driver license restoration case that there is an open and unreported (hence unresolved) case.  The hearing officer cannot take action to restore an appellant’s driver’s license until they are able to establish that the 625G has been cleared.  The permit gets cleared either through notification that the case has been dismissed, or a conviction has been entered.

A problem arises when the SOS receives untimely notice of an abstract of conviction from the court (a late received abstract).  It is the SOS policy and procedure to refuse to backdate the implementation of the additional suspension or revocation to the date of the original conviction.  Rather, the SOS will start the additional administrative action (MCL 257.904, or “904 action”) on the date of the receipt of notification from the court.

As a practical matter, that can lead to a situation where the client has served up to five years since his last conviction without the abstract ever having been sent to the SOS.  Then, when they go to the DAAD (Administrative Hearing Section) for a hearing, the hearing officer contacts the SOS and the court sends the late received abstract to them.  The revocation begins at that time, meaning that your client is not eligible for a license for another five years, thus turning a five year revocation into a ten year revocation.

The SOS has taken a hardline position on these cases, refusing to backdate the late received abstract because they maintain it is not their error.  (True enough, but the error is on the part of the State of Michigan, and it is in their power to correct without causing the person injured by the State's error further hardship or unnecessary expense.)  The client then is forced to file a circuit court appeal, requesting that the judge enter an order requiring the SOS to backdate the late received abstract, making him eligible for immediate review.  Unfortunately, the unsophisticated client is often unaware that he even has any recourse under the law.  Unless he consults an attorney, no one will tell him.

This has obvious negative consequences in terms of time and money for the clients, some of whom can barely scrape together the money for the SOS 257/258 evaluation.  It is also clearly something the client has no control over.  The implementation of the law in this manner makes him responsible for the inefficiencies of the court clerk.  Moreover, there is no way the client can file this appeal in pro per; he will need an attorney, thus putting the procedure out of reach for those without the necessary funds, while making it more costly and time consuming for those who can afford to pursue the matter.

It is silly to argue about who is to blame; the problem needs to be solved.  Either the SOS needs to allow these late received abstracts to be backdated, or get after the courts to report convictions in a timely manner.  Not to do so is continue a policy of denying due process rights to those who can least afford to pay for equal treatment under the law.
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It is also worth noting that there has been a minor change in the SOS 258 for as of September 2014 that asks for the results of the ethyl-glucoronide test (generally spelled “glucuronide”).  This test is also referred to as the EtG test and is not required, but according to the Administrative Review Division of the SOS, was included in the form as a result of that test being submitted as proof of sobriety at an Appeal Hearing. Further information about the test is available at this web address: http://en.wikipedia.org/wiki/Ethyl_glucuronide .

Briefly, it can be used to detect small quantities of alcohol that a person has ingested, but cannot distinguish between these and alcohol that may have been applied topically, produced by ingesting foods, or inhaled in the environment.  Efforts to establish a record of alcohol consumption from hair or nail examination is apparently even less reliable, and the use of the tests for any forensic purposes are questionable:

“The U.S. Substance Abuse and Mental Health Services Administration has cautioned that the test is ‘scientifically unsupportable as the sole basis for legal or disciplinary action’ because the highly sensitive tests ‘are not able to distinguish between alcohol absorbed into the body from exposure to many common commercial and household products containing alcohol and from the actual consumption of alcohol.’”   (Center for Substance Abuse Treatment. The Role of Biomarkers in the Treatment of Alcohol Use Disorders. Substance Abuse Treatment Advisory. Volume 5, Issue 4, 2006)
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Finally, you may be legally drunk at .08, and you may go to prison for a fatal accident of you are impaired at .05 (one of my clients did), but if you can’t get to those levels by 2:30 a.m., the Michigan Legislature may help you out by allowing bars to stay open until 4 a.m.  The proposal has passed the senate and is awaiting approval by the house before going into effect.  http://www.mlive.com/lansing-news/index.ssf/2014/12/michigan_bars_could_stay_open.html

The argument in favor is that to be a big league city and compete with New York and Chicago we have to allow big league drinkers the room to operate.  The fact that you can get around without driving in New York and Chicago (and many people do) does not seem to be a consideration.  This is a simple case of greed triumphing over good judgment and the safety of the citizens for whom our legislators allegedly have so much concern.  The simple truth is that, when passed, this legislation will cost lives, though it will generate revenue for downtown bars, and work for law enforcement, prosecutors and defense attorneys.  Is it worth it?
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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com.