In Michigan the of driving while license suspended, revoked, or denied (DWLS) is a misdemeanor that carries for a first offense a maximum jail sentence of 93 days and a fine of not more than $500. A conviction for this offense will result in a suspension of driving privileges. It is not common for a person who is charged with DWLS to claim that they did not know that there license was suspended at the time. This situation is completely possible. Reasons for this may be the person believed that a family member paid or handled the ticket for them, they were not told that they had to pay a clearance fee on the ticket to reinstate driving privileges when they paid a ticket, somebody else used their name or identification while driving, they never received a notice from the Court or Michigan Secretary of State that the license was suspended.
It does not seem fair that a person could have a misdemeanor offense permanently affixed to their criminal and driving record when there was no intent to break the law. A conviction for DWLS is permanently affixed to a criminal record, because DWLS (pursuant to MCL 257.904) is written under the Michigan Vehicle Code, and offenses under the Michigan Vehicle Code are not subject to expungement. It is rather sad because this isn’t really even a case of ignorance of the law (which is never a defense), but more of the ignorance of an important fact that lead to a criminal charge. Had the person known of this important fact, in many cases the individual would have either not driven or took the steps necessary to have the driver’s license status corrected or restored so the offense would never have occurred.
What does Michigan law say as it relates to intent? According to Michigan Criminal Jury Instruction 15.20 the prosecution has 4 elements that it must prove beyond a reasonable doubt for a conviction to occur for the offense of driving while license suspended or revoked:
- The Defendant must have either driven or had actual physical control of the motor vehicle;
- The Defendant operated the motor vehicle on a place open to the public, a highway, or a place accessible to the motor vehicles such as a parking lot;
- The Defendant, when he or she operated the motor vehicle had a suspended or revoked driver’s license;
- That the Secretary of State (does not specify Michigan Secretary of State) gave notice of the suspension to the Defendant. Notice in this case is in the form of first class mail addressed to the Defendant to the address which the Secretary of State has on record. The notice must have been provided at least 5 days before the date of the the offense.
It is important to note that the word “intent” does not appear in the jury instruction. The word “intent” does not appear in the language of MCL 257.904. Intent seems to be not relevant when it comes to this law.
Is it a defense that the Defendant never received the notice from the Secretary of State? I think everyone has instances where they do not receive letters that were mailed. The letter was lost in the mail, or mis-delivered to a neighbor or business. It is probably not uncommon for a letter that was sent to the wrong address to be put in the garbage along with the junk mail that everyone receives in our mailboxes. A plain reading of the law indicates that the only proof the prosecution must show is that the notice was mailed – not that it was actually received. If the case went to trial, all the prosecutor would have to show is a record from the Secretary of State that the notice was sent – a certificate of mailing. They do not need to produce a witness to testify to the fact that the letter was mailed. In Michigan a case by the name of People v Terry Nunley was decided by the Michigan Supreme Court. The Michigan Supreme Court ruled that the presentation of the certificate of mailing at a DWLS trial does not violate the Defendant’s right of confrontation, because the certificate of mailing was not testimonial and was generated before the date of the alleged offense. It is deemed to be an exception to hearsay as a business record.
If your defense is simply you did not know your license was suspended you should hire an experienced criminal defense lawyer to represent you. A criminal defense lawyer may be able to negotiate a plea bargain to a lessor misdemeanor offense or possibly a civil infraction.
In some circumstances the Defendant may still want to have a trial. The reasons are various: it is not fair to have a conviction; the Defendant is on probation with another Court and this will constitute a probation violation; the Defendant is worried that a conviction may impact employment (for example, if they work as a truck driver) or impact a future career (for example, a concern that they will not pass a background check or will cause problems with obtaining a professional license); the Defendant is concerned that he does not have legal immigration status and a conviction will lead to the Court or probation department to make Immigration and Customs Enforcement (ICE) aware of their unlawful presence in the United States. The reason does not matter, because anyone charged with a criminal offense have a constitutional right to trial, a presumption of innocence, and other Constitutional protections.
If the Defendant wants to have a trial, it is important that they have a lawyer with trial experience to help give them the best chance to win. The Defendant will probably want to have a jury trial, rather than a bench trial (trial where a Judge decided if the prosecution proved its case beyond a reasonable doubt). At a bench trial the Judge has a duty to follow the law. At a jury trial, even though the jury takes an oath to follow the law and to not consider sympathy or possible penalty, a jury might be more persuaded by the equities of the case. A juror does not forget or abandon his or her individual sense of fairness, compassion, and life experiences at the door of the jury room.