Michigan License Restoration Appeals – Who is your Hearing Officer? – Part 1

My job as a Michigan driver’s license restoration lawyer involves a lot of license appeal hearings. Back in 2011, I put up a 2-part blog installment entitled “Driver’s License Restoration Appeals in Michigan – Know Your Hearing Officer.” This 2-part article will be a timely update of that article, because there has been a couple of changes to the lineup of the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers in Livonia, where my cases are heard, and because, frankly, it’s time to refresh this very important subject anyway. The hearing officer is to a license reinstatement case what a conductor is to a classical orchestra. When you look at either a license appeal case or orchestral composition, everything is on paper, and, in a sense, both the rules of a license appeal and the music in a symphony are spelled out clearly, in black and white. A piece of music is what it is, but one conductor may have the orchestra play a passage faster, or more loudly, than another maestro. In the same way, each hearing officer sees things a little differently than the others, and each finds certain particular evidentiary points more important than his or her colleagues. In other words, each conductor and each hearing officer interprets what’s in front of him or her in their own unique way. In a license appeal case, understanding how that works is critical to winning.

question-mark-face.pngIn a Michigan license restoration or clearance appeal case, the 2 main things you must prove are that your alcohol problem is “under control” and that your alcohol problem is “likely to remain under control.” “Under control” means that you haven’t had a drink for at least a year; I explain this by saying that you have to “fix” a sobriety date, even if you only know the month and year (for example, by saying something like, “June of 2011”). In my practice, I generally want a person to have been sober for at least 2 years, and I much prefer at least 3, and even more. “Likely to remain under control” essentially means that you are a safe bet to never drink again, which entails proving you have both the commitment and the tools to live an alcohol-free lifestyle. There is a lot more to a license appeal than this, but at least we have a frame of reference to start. Proving these things is primarily done by submitting letters of support and a substance abuse evaluation. How the hearing officer assigned to your case interprets this (and all the other) evidence is really fundamental to its outcome.

I have all my license appeal hearings set at the AHS office in Livonia, where there are 5 hearing officers. Because of the sheer volume of license appeals I handle, I wind up before the same hearing officers again and again – and again. I get to really know how they do things, and I am very familiar with the things they have in common, as well as the idiosyncrasies that makes a hearing before one of them different from a hearing before anyone of the others. This is important to me because the specific hearing officer assigned to your case significantly affects how we’ll prepare for it. Beyond the various evidentiary or legal points in any given case that may be more or less important to one hearing officer over another, the way each hearing officer conducts a hearing is unique to him or her, as well. I simply cannot imagine a client walking into the hearing room without having been prepared for exactly what is going to happen, how the hearing is going to play out, what questions are going to be asked, and by whom. That last part is important because as it stands now, 3 of the 5 hearing officers prefer that the lawyer ask most of the questions. By contrast, and less than 3 years ago, standard operating procedure was for the hearing officer to ask most of the questions, so the whole idea of who will be asking the questions is now an important part of the hearing process and preparation for it. Therefore, when I know that I’ll be asking most of the questions, I have to remember to include those that are of particular interest to the specific hearing officer deciding the case. In other words, even the questions that I ask changes somewhat from hearing officer to hearing officer.

Because they are individuals, and because of their varying personal and professional backgrounds, the Livonia hearing officers bring a rather broad palette of perspectives to the job. I know this may sound like I’m trying to “suck up,” but the fact is that I honestly believe they are all decent, good and highly intelligent people who always try to do the right thing, and usually (I’m being honest here, remember) do just that. I can say, with a certainty, that I have never, ever seen anyone treated unfairly (or anything remotely close to it) by any of the Livonia hearing officers, even in those cases where I did not agree with the ultimate decision. It is critically important to remember that the hearing officers are obligated to follow the rules, and the main rule governing license appeals, Rule 13, begins by requiring that “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….”

Looking at that opening passage of the rule, you can see that it begins with a clear negative mandate to the hearing officer, requiring that he or she “not order that a license be issued….” The hearing officer’s job is controlled and governed by this rule. Dan the driver may be a really nice guy who desperately needs a license, but the hearing officer, if he or she wants to remain employed, must follow the law and the rules, even if it means that, for what many people might consider a technical reason, Dan’s appeal has to be denied. And you need to bear in mind that the very same evidence may be evaluated and/or perceived differently by each hearing officer. This can get complicated and difficult, and is why, if you are genuinely sober and really serious about winning back your driver’s license (or obtaining a clearance of a Michigan hold on your driving record), you hire me. When I take a license case, I guarantee to win it. All I need is a sober client who is both legally and practically eligible to move forward. Whatever else, you’ll only pay me once to get back on the road, and we’re both invested in making that happen as soon as possible.

As I noted earlier, there has been a change in the lineup of hearing officers at the Livonia Secretary of State’s Administrative Hearing Officer (AHS). One hearing officer retired, and another left for a federal Administrative Law Judge position, bringing 2 new people into the fold. I will describe them more shortly, but I am happy to report, in the meantime, that each of them has proven to be a competent and nice addition to the group of hearing officers already there, emphasis on the word nice.

For the detail-oriented reader, it would prove useful to read the 2011 article in conjunction with this installment. For the reader more interested in the current layout, this article will do just fine on its own. Now, with the preliminaries out of the way, let me introduce you the hearing officers as I know them, using a “nickname” that I feel best describes each. The 3 remaining hearing officers who were profiled in my 2011 article will keep their same nicknames:

The Judge. Since I last wrote about him nearly 5 years ago, I have had many cases before and many conversations with this hearing officer. I have become more convinced than ever that he is one of the smartest people I have ever met. I’d certainly characterize him as the “toughest” hearing officer currently in Livonia. The Judge, as I call him, balances a very direct approach to questioning with an ability to sense real sobriety. A former prosecutor, he knows how to ask the hard questions, and he will not accept half answers or incomplete responses. Some people may find him intimidating, but If you’re genuinely sober, then you have nothing to worry about. Without a doubt, his method will quickly unmask someone trying to “fake” sobriety, or otherwise feign involvement with something like AA. He really comes as a kind of mixed blessing; anyone who really has quit drinking, no matter how complicated his or her case, can rest assured that this hearing officer has more than enough intellectual horsepower to get to the truth, and in those cases, he’s a gift. This works for me and my clients. Anyone who is not really sober or genuinely committed to sobriety, however, would probably be better off to simply not show up for their hearing, because this man is way beyond ever being fooled. Someone trying to scam him can expect the hearing to be a painful experience. He is an active participant in most hearings, and he’ll jump in where he feels necessary to ask a question he considers important. He wastes little to no time, and is a stickler for punctuality. If you’re truly sober, he’s a great hearing officer. If you’re not, well, you won’t be my client in the first place, so good luck…

The Listening Lady. The newest of Livonia hearing officers, “The Listening Lady,” as I’ll call her, came to the job with very impressive, if not intimidating credentials. Having worked as a prosecutor at both the county and state (Attorney General) level, I feared that she would turn out to be some kind of all-business courtroom toughster that seldom smiled. Thankfully, my concerns were entirely unfounded. As much as it can be said that Harvard doesn’t graduate any dummies, the Attorney General’s office doesn’t hire any, either. Accordingly, The Listening Lady came to the hearing officer’s chair with both refined intelligence and significant legal experience. Those are great qualifications, but if the person who has them is not kind, by nature, or is otherwise so smart that he or she is impatient, then dealing with him or her will be difficult, at best. The reason I chose the name “The Listening Lady” is that this hearing officer is very patient and genuinely listens to a person’s story; you can literally see it in her eyes. She has what I’d call “kind eyes.” Believe me, I’ve spoken to enough people in my life to know when someone is impatient, fakes being patient, or just “listens” even though he or she has checked out. This hearing officer actually listens to everything that is said, and you know that because later on, after the questioning has ended, she’ll often return to something that was said way before. The reader must understand, however, that my experience with this and with every hearing officer, in restoration appeal cases, is limited to representing those people who are genuinely sober. This means that in the cases I’ve had before her, I’ve watched her react as my client has detailed how he or she hit bottom (or had the light bulb go off, so to speak), finally quit drinking, and thereafter describe how profoundly his or her life has changed in the years since. Her decisions are thoughtful, taking into account everything that has been presented, and stand as further proof that she doesn’t miss a single word. This is great if your recovery story is true, but it also means that she’ll catch any inconsistencies or other indications that someone is trying to fake his or her sobriety.

We’ll break here, as I’m at about the halfway point of this article, and come back in part 2 in order to examine the other 3 hearing officers in Livonia.