The myth that you will get denied at your first Secretary of State hearing

It is quite common that when I speak with someone who contacts me after being denied by the Secretary of State, that he or she had not retained legal counsel for the hearing.  They often tell me that “I heard that everyone gets turned down at their first Secretary of State hearing, so I didn’t bother to hire an attorney.”

When I ask who told them this, it was usually either their alcohol treatment provider or a fellow AA member, who was trying to be helpful by passing down this piece of “wisdom.”

The unstated premise is that they thought it would be a waste of money to hire an attorney for a hearing that they were going to lose.  Might as well go in by themselves and get it over with.

I get pretty frustrated every time I hear this from another inadvertent victim of this myth because I realize that this person has not only had his Petition denied when it perhaps  wouldn’t have been with the help of counsel, but he has also wasted lots of time and has now “dirtied up” his Secretary of State file.

Let me point out why:

I.   Everyone does not get denied at their first hearing.
Let me repeat that: “everyone does not get denied at their first hearing.”  A Secretary of State hearing is not a sham process; they will listen to you and give you consideration.  I have represented many clients who have received either a driving permit or reinstatement after his or her first hearing.

The same goes for “experts” who will tell you that the Secretary of State will automatically deny everyone before a certain amount of revocation time.

And here is an anecdote about this: once, I got a call from a client who was very upset.  He was in the waiting room of an evaluator, and was told that I was scamming him and that the Secretary of State yet, because they would not give him a permit or reinstatement so soon after revocation.  The client was upset and despondent.  I had to talk this client out of what he was about to do — mothball his reinstatement process for at least a year —  and instead convince him stay on the path that we had set out, and just ignore any “advice” about the Secretary of State that he received from anyone who was not an attorney.  He went to get an evaluation from a different facility.  A few months later, he was driving legally.

II.  Even if you are denied at your first hearing, if you minimize your “mistakes” your path to reinstatement will be much shorter. 
So lets say you are denied at your first hearing.  What is your next step?  Most likely, it is another hearing, at which time you will get a chance to respond to the reasons for your previous denial.  At this hearing, your previous denial(s) will be admitted into evidence.

Most of the mistakes that people make at Secretary of State hearings are blatantly obvious and stick out like a sore thumb to anyone who regularly practices there.  Things like saying that you had three beers and weren’t drunk on the night of your rollover crash with a BAC of 0.22.

Once I had a client who came to me after several unsuccessful Secretary of State hearings that he had attempted without an attorney.  At first, he was denied because the Secretary thought he was “minimizing” his drinking.  So then, he decided to exaggerate his drinking use, because that is what he thought the Secretary of State wanted to hear.  In response, the Secretary of State denied him because they believed that his treatment was inadequate for the magnitude of his drinking problem.

There is an adage popular with attorneys, that you can’t “un-ring a bell.”  Well, believe me that it is pretty hard to un-say that you are an alcoholic.

Had he retained me before the first hearing, I would have worked to get a correct assessment of his alcohol issues.  Even if he was denied, it is almost certain that the issues that needed to be addressed for the second hearing would be fewer in number and less serious. And when the Secretary of State hearing officer reviewed his previous denials, they would be unlikely to see anything that gave them pause to reinstate.

By the way, I ultimately did get this client his license back.  But it took an extra hearing to clear up all the contradictory things that he had said in his previous hearings and then get the Secretary of State to accept that what he was saying now was really the truth. This was totally unnecessary had he only retained me from the get-go.