Simplifying a Michigan License Appeal and Understanding DAAD Rule 13 - Part 1

September 30, 2011

As part of my Driver's License Restoration Practice, I have tried, within the License Restoration section of this blog, to explain every aspect and facet of the License Appeal process. Many of those articles examine the varying degrees of complexity involved in a License Appeal, and try to boil these issues down to their more manageable, understandable elements.

Sometimes, what seems simple is not. This article, however, will take the opposite approach, and will focus in on a pair of issues that at first glance seem complex and difficult, yet in reality are rather quite simple. In other words, I hope to show how what may at first seem like some monstrously confusing and difficult passages of legal mumbo-jumbo can actually be reduced to a very simple, easy to understand concept.

easy-button1.jpgTo be clear, the two issues with which we are concerned are numbers 2 (ii) and 3 (iii) under Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) Rule 13, the rule that governs License Appeals. For reference, here is the relevant part of Rule 13, in all of its "legalese" glory:

(1) With respect to an appeal hearing that involves a review of a determination of the department which results in a denial or revocation under section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act, all of the following provisions apply:
(a) The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following:
(i) That the Petitioner's alcohol or substance abuse problems, if any, are under control, and likely to remain under control.

(ii) That the risk of the Petitioner repeating his or her past abusive behavior is a low to minimal risk.

(iii) That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act is a low or minimal risk.

The whole point of this article is going to be to show how issues 2 (ii) and 3 (iii) "fold into" issue number 1 (i), and require no separate evidence or proof. In other words, we are going to demonstrate that, if a person satisfactorily proves issue number 1 (i), they have likewise and simultaneously proven issues number 2 (ii) and 3 (iii). No further proof is necessary beyond that made for the first issue, and issues number 2 (ii) and 3 (iii) can pretty much be safely ignored. To clarify, within Rule 13 itself, issues number 1 (i), 2 (ii), and 3 (iii) are identified as (i), (ii), and (iii), respectively. To make things easier, we'll just refer to them as issues number 1, 2, and 3 wherever possible.

Before we can do that, however, we need to understand a little more about the application of Rule 13, as well as the first issue. In a recent article, I have put the notion of "Clear and Convincing Evidence" and the first issue and its various implications under the microscope, and if we're ever to get to the point of this article, the reader will either have to read that article, or accept as true my summary description of the what this first issue really means:

That the Hearing Officer "shall NOT" grant any Driving Privileges, unless the person proves his case by "clear and convincing evidence" more or less means the person has to hit a "home run." It means the only way to win is to win by a "knockout." There is no winning by a hair, or any such thing as a close call. To win a License Appeal by "clear and convincing evidence" means to go in prove the case overwhelmingly.

"That the Petitioner's alcohol or substance abuse problems, if any, are under control, and likely to remain under control" is interpreted by the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) to essentially mean that (1), the person's alcohol (or drug) problem is under control, and that (2), their alcohol (or drug) problem will likely remain under control.

Given that about 99% of all the License Appeals involve multiple DUI's, and very seldom Drug Crimes, we'll confine the rest of our discussion to alcohol, and not drug issues. Everything we discuss from here on out, however, applies equally to Drivers' License Revocations for a combination of Alcohol and Drug Offenses, or even just multiple Drug-related Driving Offenses.

To begin, it is very important to know that the words "if any," as used in the rule, can be totally disregarded. The Secretary of State assumes a person with multiple DUI's has an alcohol problem. Thus, when they read the first issue under Rule 13, they quite literally don't see the words "if any," This means, that instead of reading the fist issue as saying "[t]hat the Petitioner's alcohol or substance abuse problems, if any, are under control, and likely to remain under control," they see it as saying [t]hat the Petitioner's alcohol or substance abuse problems are under control, and likely to remain under control." Since they don't pay attention to the words "if any," then neither will we.

Thus, the meaning of this first issue under Rule 13 is seen by the DAAD as requiring that a person prove that they have been alcohol free for a given period of time, and that, more importantly, they are a darn safe bet to remain alcohol-free, or Sober, forever.

Accordingly, a person seeking to win back his or her License has to prepare and present a case strong enough to equate to a homerun, or a knockout, and must show that they have not had anything to drink for quite some time (usually, at LEAST a year) and, most importantly, that they are quite likely to NEVER drink again.

Of all the things one must prove, the most difficult, and the one most likely to result in a License Appeal being Denied, it is that the person's alcohol problem is "likely to remain under control." I have dissected this issue into a million little pieces in other License Restoration articles, including those linked here in green, and the reader should be familiar with what "likely to remain under control" means before trying to make sense of this article.

For all that complexity and detail, however, the simple fact is that the DAAD must be convinced, by "clear and convincing evidence," that the person Appealing is likewise convinced that they cannot ever drink again, and is truly committed to that. In other words, the person must prove their Sobriety.

And now the good news: it gets easier from here.

Let's imagine, for a moment, that a person has hired me, and we have filed their Substance Abuse Evaluation and Request for Hearing, along with their Letters of Support in Lansing. As the Hearing date approaches, and I prepare my Client for it, how will we make sense of issues 2 (ii) and 3 (iii)?

As it turns out, we'll make sense of it quite easily.

Once I have prepared the Client to properly address the inquiry about their alcohol problem being "likely to remain under control," (and note, much of this will already have been done at the time we spent our first 3 hours together preparing the Client to undergo the Substance Abuse Evaluation, and as I help edit the Letters of Support), it is hard to imagine what other information would be relevant to simultaneously show "that the risk of the Petitioner repeating his or her past abusive behavior is a low to minimal risk."

In other words, doesn't it make sense that if a person has already shown that it is a safe bet that their alcohol problem is likely to remain under control, they have likewise already shown that they are a low to minimal risk "to repeat past abusive behavior?"

Of course it does.

In fact, I have not been able to think of anything that would tend to show that the person is a low to minimal risk to repeat past abusive behavior that would not simultaneously show that their alcohol problem is likely to remain under control, and vice-versa.

In short, this is really the same thing, said in a different way.

Therefore, when a person pursuing a License Appeal proves that their alcohol problem is "likely to remain under control," they will also have simultaneously proven that they are "a low to minimal risk to repeat past abusive behavior."

The two issues, in fact, fold into one. More particularly, the concept of a person being a low to minimal risk to repeat past abusive behavior becomes irrelevant, in the sense that it will have already been proven, once the person shows that their alcohol problem is likely to remain under control.

In a way then, issue number 2 (ii) is really redundant. Prove the first issue, then you will have likewise proven the second.

And the news keeps getting better: The same thing applies to issue number 3 (iii), "that the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance... is a low or minimal risk."

We'll pick up there in part 2 of this article, and show how this third issue, like the second, folds into the first. We'll then conclude by seeing how what at first glance seemed so complex is, in fact, quite understandable. In other words, we'll get a handle on it.