THE EXPERT WITNESS: Discretion is required

By Michael Brock and Matthew Zick

Now that cameras are mandatory for persons driving on a restricted license issued by the AHS of the Secretary of State, there should no longer be any questions regarding who is providing the clean air required to clear the interlock device after a bad blow.  This should simplify matters for clients, who previously had to concern themselves with some reliable independent verification for false positives (such as a breathalyzer at a police station).

However, there is still the issue of how to deal with prior positive readings when it comes time to try to have the driving restrictions removed.  Hearing officers are not going to assume that any positive blows were cleared legally, if at all, and if independent verification is absent, legal counsel may be faced with the dilemma of whether to wait longer before trying to get full license restoration, at the risk of his client possibly being extended or revoked.

Clients are understandably going to be anxious to get the process over with, but some violations are going to be more suspicions than others, and these present the most difficult choices. 

If the client had a bad car battery, had to replace it, and has the receipt showing the time and place of the purchase and/or installation, he is probably going to be OK, though he should inform the interlock company prior to unhooking the device. Likewise, if he is having the car worked on, he should let the interlock company know about it ahead of time and keep the receipt.  If the signal goes off for a rolling retest and he does not respond within the allotted time, he will incur a violation, but it can be adequately explained and is not likely to result in revocation or extension the time he must keep the interlock device installed.

However, what if the client tried to start his car twice in the morning and blew over the allowable limit?  What if he didn’t try to start the car again until that afternoon?  It is hard to explain this as anything but a BAC still present the morning after some drinking the night before.  In such a case the client may incur a revocation, which he will be given two weeks to file an appeal.

Sometimes clients will neglect to mention the positive readings to the evaluator, which is going to be viewed as duplicity by the hearing officer.  Some clients will offer excuses, such as that someone else drove the car.  This is possible, but not acceptable, since the person who is issued the interlock device is responsible for whoever drives the car.  It is also somewhat improbable, and not a very good argument to make, since the clear and convincing standard of proof is the burden of the client.

In the event that the client has to explain positive blows, but his license is not pulled by the state, the attorney has a decision to make when it is time to go for full restoration.  Does he go when the time is up and the client is technically eligible?  Or does he wait until the client has experienced a longer period with no incidents before going back to try for full license restoration?  Matthew’s experience has been that the best case scenario in such a case is that the interlock period is likely to be extended; the worst case is that all driving privileges are taken away if you return too soon.

Therefore, it is his opinion that the best thing to do is to allow time to elapse so that the client can show at least a year of driving on the interlock device without incident, or at least without an incident that has been independently verified to be a false positive.  Again, with the cameras now a requirement, this problem should no longer be an issue because the state will know who did the blow to clear the machine, making independent verification unnecessary.  But for incidents that happened before cameras were installed the attorney must use good judgment deciding when his client is ready for a hearing.
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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.

Matthew A. Zick is a senior trial associate with Grunow & Associates PLLC in Flat Rock, Michigan.