Articles Posted in Driver’s License Restoration

I was recently asked how many Michigan driver’s license restoration cases I handle every year, because the person making the inquiry was being a smart consumer and doing some “comparison shopping.”  Off the top of my head, I indicated that I wasn’t exactly sure, so I took out my date book at looked back over the preceding 2 months.  As it turns out, in March of this year (2017), I handled 25 driver’s license restoration and clearance cases, and in April, I handled 22 license appeal cases; that’s about average for me.  While that much experience is certainly a lot, and should give any potential client a sense of comfort about hiring me, I think it’s even more important, however, that I provide a first-time win guarantee in every license appeal case I take.  Seriously, if all that experience is worth anything, then I should have no reservations about putting my money where my mouth is, and I don’t.  For all the talking that could be done, the importance of my guarantee says far more than anything else ever could.  In this article, I want to take a candid look at what that experience really means, and why, more than anything else, getting good at license appeals means learning from one’s mistakes.

experience-276x300Let’s start with this blog.  Over the years, it has really grown, and this will be the 377th driver’s license restoration article I’ve published, bringing the total number of articles I’ve put up so far to almost 800.  Writing these articles has made me a much better lawyer, because I’ve not only had to research all kinds of things, including the most minute details of more legal issues than you could imagine, but also because I’ve also had to take the time to make sense of it all.  You can’t explain something very well unless you understand it first.  Heck, even if I wasn’t a lawyer, I’d be something of an expert at license restorations just through the effort of writing nearly 400 articles on the subject.  And in the spirit of candor, it hasn’t been lost on me that, since this blog began, a whole crop of new lawyers has swarmed in to claim some piece of the license restoration pie.  Now, I see website names with some variation of “license restoration” all over the place.  I’ve also seen some of my blog subjects “borrowed” on various websites (it’s said that imitation is the sincerest form of flattery), and I am well aware that plenty of lawyers read and use my articles to learn various aspects of the license appeal process.  I’ve had numerous calls and emails from lawyers with all kinds questions, and honestly, I’m glad to help.  Yet for as much as I know, the cold, hard truth is that I learned much of it the hard way, by having gotten it wrong at some point before.

I would, of course, caution anyone, but especially any lawyer, that although I have certainly put out more relevant information about license appeals than you can find any and everywhere else combined, my primary purpose it to educate and enlighten people about the license restoration process, not train anyone how to do it.  You can’t learn to ride a bike or perform surgery by reading; these are things you have to actually go out and do, and no matter how smart you may be, you learn the most from the things you get wrong.  The light bulb wasn’t invented on the first try.  Instead, it came about after countless failed attempts.  It was gotten right because it was gotten wrong so many times first.  Ditto for the airplane.  Perhaps what I bring to the table more than anyone else is that in my career, I’ve learned all the things NOT to do in, or not to leave out of, a license appeal case.  The sheer number of cases I’ve handled means that some lawyer knocking out 50 license cases a year is going to need 26 years to encounter all the situations I have in just the last 5.  In other words, I’ll see and handle more cases in less than a decade than he or she would in more than half a century, and I’ve been at it for over 26 years already…

In part 1 of this article, we began examining an appeal for a “full” Michigan license, and how a person gets off the interlock after having initially won his or her driver’s license restoration case.  We noted that simply not losing your restricted license in the intervening year(s) isn’t anywhere near good enough to win back your full license, and that there’s a lot more to this than just coming  back and asking for it.  Most people (I estimated more than 80%) will experience a “glitch” or two on the interlock device while using it, and those issues will have to be addressed at the hearing for a full license, even if none of them results in a formal ignition interlock violation.  We noted that, just as in a first-time license appeal, every hearing officer is different, and that some have more patience than others, the flip side being that some are more prone to “violation fatigue” and begin to shut down when a person shows up with an final ignition interlock report that has too many “glitches” for his or her liking.  We’ll pick up in this second part right there, at the point where a person shows up at his or her full hearing with an final report that has more “violations” than the assigned hearing officer is willing to excuse.

maxresdefault-300x211This is somewhat unfortunate, because some people are just plain luckier than others.  I’ve seen cases where people have had a real tough time with the interlock unit, but were also firmly committed to their sobriety.  Some people wind up getting a faulty unit and have nothing but trouble, while others never have any kind of difficulty with the machine.  There is, no matter what else, an element of luck to all of this.  In fact, it is rare for a person to make it a whole year without at least a glitch or two along the way.  One of the big problems is that not every glitch results in a formal violation, so when an incident occurs, and as long as the car starts again, or something like that, a person may have figured everything is fine – until they get to their full license hearing.

Let’s look at a common, real world example of this:  Lots of people will have a positive breath test result at some point, either at start-up or while driving (rolling retest).  The notice of interlock use in the back of a winning order and interlock companies’ instructions advise that, when this happens, a person rinse out his or her mouth and promptly try again.  When someone who is and has been stone-cold sober for a number of years blows into the machine and sees a positive result, what crosses his or her mind is usually something like, “WTF?”  The person knows he or she hasn’t been drinking, so when they rinse and/or try again a few minutes later and the test comes back negative, they figure all is well, and their innocence has been proven.  They forget the instruction in the notice of ignition interlock use to get a PBT or EtG test, and, because they were able to provide a clean sample, assume all is well.

In this 2-part article, I want to examine removing the ignition interlock unit and getting a full license after a successful driver’s license reinstatement appeal.  If you’re a Michigan resident whose license has been revoked for multiple DUI’s and you win your license back, you must start off with a restricted license and drive with an ignition interlock for at least 1 year.  You can drive forever on that restricted license with the interlock unit if you want, but you can’t seek a full, unrestricted license without an interlock until you’ve used it for at least the first year.  The process for moving from a restricted to a full license (the Michigan Secretary of State’s technical term for this is “change or removal of restriction”) is exactly the same as it is for an initial license restoration appeal, and requires a new substance use evaluation (everybody calls it a substance “abuse” evaluation, so we’ll just go with that), new letters of support, and, additionally, a final ignition interlock report from the interlock company for the past year. For my part, I charge my returning clients 2/3 of the initial fee in these cases, primarily because I already know the client, his or her history, and everything else relevant to the case.

fe4cd6a8f7d07156017b970b0e163329-300x291Perhaps the biggest misconception about going from a restricted to a full license is that all you have to do is NOT lose your license in the meantime and it’s practically a done deal.  It is certainly easy, but also wrong, to think of the restricted period with the interlock as a kind of “probation” wherein if you don’t get in trouble, then all conditions just go away.  Of course, if you violate your restricted license (ignition interlock violations are a whole world unto themselves) and get it taken away, then it’s game over.  Anyone who loses his or her restricted license has to start all over again from square one, and must complete a successful year on the interlock  device and with the applicable restrictions before he or she can even think about appealing for a full license.  But even someone who sails through the first year on the interlock and the restricted license without a hitch will still have to come back and prove the relevant legal issues all over again on top of demonstrating their compliance with the interlock requirement.  This may seem a bit confusing, and may not make a lot of sense at first, but it is what it is, so if you want to eventually drive without the interlock and without restriction, you’re going to have to follow the state’s rules.

When someone comes back to the Michigan Secretary of State’s Administrative Hearing Section (AHS) to have his or her restricted license made “full,” the hearing officer is going to look and see whether it was proper to grant that license in the first place.  In other words, and this is one of the main points of this article, it is not automatic that if you won the first time, you’ll win again.  For example, assume Dan the Driver has appealed for a full license, and hearing officer # 2 is deciding his new case.  In reviewing the documents, hearing officer # 2 concludes that he or she wouldn’t have even given Dan a restricted license in the first place, or would have imposed some condition(s) on Dan not imposed by hearing officer #1.  Does this mean that Dan will lose his license altogether?  Probably not, but it does mean – and this does happen in the real world – that Dan may not win his full license this time around, and instead be continued on a restricted with the interlock for another year, and may even some additional conditions imposed on his restricted license.  The goal, of course, is to avoid all of this…

A substantial portion of my driver’s license restoration practice involved obtaining the clearance of a Michigan hold on someone’s driving record that prevents him or her from getting a license in another state.  The very same evidence is submitted to the Michigan Secretary of State’s Administrative Hearing Section (AHS) for both a clearance and a driver’s license restoration appeal.  Although just about everyone (understandably) wonders about doing an administrative review, often called an “appeal by mail,” most learn that 3 out of every 4 such cases lose, and that a person will have to wait a whole year before he or she can file again.  Those with better luck read and understand this before they try, while the less fortunate have to find out the hard way.  The simple truth is that the best and surest way to win a clearance of the Michigan hold on your driving record is to do a full appeal and come back for a hearing.  For my part, I put my money where my mouth is, because when I take a license clearance and restoration appeal case, I guarantee to win it.

Mitt-276x300There are several reasons why I will only handle these cases for clients who come back to Michigan, despite endless offers to hire me for help with these ill-fated and ever-doomed administrative reviews.  The first is control.  When a client hires me, I control every part of the case, from the preparation to the evidence to the hearing itself.   My clients will go my evaluator to have his or her substance abuse evaluation (technically, it’s called a “substance use evaluation,” but everyone alive calls it a “substance abuse evaluation,” so we’ll just go along with that) completed.  The first meeting with a new client takes about 3 hours in my office, and takes place prior to the evaluation.  In fact, the main point of that meeting is to prepare the client for the evaluation.  If someone wants to have an evaluation completed by some unknown person in another state, I have absolutely no control over any part of that process.  Beyond my input, it takes a LOT of time and effort for a substance abuse counselor to learn to complete the evaluation in the way the hearing officers of the Michigan Secretary of State’s administrative hearing section expect.  Although just about any clinician can look at the form and figure he or she can complete it, there are literally countless little things that are not obvious and that are learned either by direct instruction or, as is usually the case, by getting it wrong the first time.

The reader needs to understand that a winning license appeal takes a lot of experienced effort.  There are no shortcuts to doing things right.  As a driver’s license restoration lawyer, this cannot be done by just sending someone out to “get” an evaluation and then looking things over (including the critically important letters of support) to make sure they’re good enough.  I have to spend the time with and learn about my clients recovery, meaning his or her transition from drinker to non-drinker, at our first meeting.  I also have to try and summarize that whole story within the paperwork I create.  As it goes, every client leaves my office with a packet of information to give to the evaluator, including a form of my own creation called a “Substance Abuse Evaluation Checklist,” a specially marked-up copy of his or her driving record, and any other documents that need to be reviewed by the evaluator before the evaluation is completed.  This is part of that control I have when the client comes to my office first, and then goes to see my evaluator.  It is NOT the evaluator’s job to read your driving record, figure out your conviction history and learn the most details of your recovery story that would be most relevant to the hearing officer.  Instead, it is MY job to make sure that this information is clearly presented to my evaluator, and I do exactly that because of the control I exercise and maintain over the case.

Every day, and probably due in large part to this blog, my office is contacted by lots of people who need to win back their driver’s license.  In this short article, I want to strip away all the complex rules and procedures involved in the license restoration and clearance process and look at the single, core issue that is central to every license appeal – drinking.  If I was asked to explain what driver’s license restoration and clearances were all about in one sentence, I’d say this: To make sure someone convicted of multiple DUI’s can prove that her or she has not had a drink for a few years and has the commitment and tools to never drink again.  That’s the real “meat and potatoes” of it all.

98449071-300x249Everything about losing your license and then getting it back has to do with drinking.  To those who have not truly quit and believe they can safely indulge in adult beverages, the Secretary of State’s requirement that a person prove he or she has been completely abstinent and will remain alcohol-free seems like an obsession.  On the flip side, however, it also seems like an obsession that a person who has lost his or her license for multiple drunk driving convictions is still worried about being able to drink.  Believe me, I’ve heard every argument there is and I’m numb to them all because – and this is the big thing – the deal is that you will never qualify to get your license back until you’ve given up alcohol for good.  I understand how people feel about this, although, truth be told, I side with the state on this one.  The folks who are the best risk to never drink and drive again are those who don’t drink at all.  Opening the door even a little to believe someone who swears that his or her drinking is now under control can never be made to sound like a good idea, not even for a minute.

A long time ago, before I had hundreds and hundreds of driver’s license restoration articles published on my blog (the number stands at over 370 as of this writing), I was probably a bit harder to find on the internet.  A consequence of my consistent writing on this subject is that, to the person searching just about anything related to a Michigan license restoration or clearance issues, I come up pretty highly ranked, and, if you click on any of my stuff, it doesn’t take long to figure out that I’ve written more than just about everyone else combined.  I’m actually proud of that, and believe that as much expertise as I have, the very act of researching and explaining everything logically has made me a better lawyer, as well.  The problem, though, is that many people will automatically find me and conclude that “he’s the guy,” call me, and think that just by offering to pay my fee, they can get back on the road.  It doesn’t work that way.  Sure, I guarantee to win every case I take, but, I ONLY TAKE CASES FOR PEOPLE WHO HAVE HONESTLY STOPPED DRINKING.  That’s not a bunch of hot air on my part, either, it’s the whole point of a license appeal, and it is the reason I won’t get involved in a case for anyone who is not genuinely committed to remaining sober.

In my capacity as a Michigan driver’s license restoration lawyer, I guarantee to win every case I take.  To make that happen, I will only take a case for someone who has honestly quit drinking.  It has never been my goal to compete with any other lawyer on price, or really at any level, beyond striving to be the very best in my field.  I don’t just “do” license clearance and restoration appeals – they are the very focus of my practice.  This goes hand in hand with my deep, 25-plus year interest in the addiction and alcohol issues, so much so that a number of years ago, I went back to the University classroom and completed a post-graduate program of addiction studies so that I might formally sharpen my clinical knowledge and expertise in things like how people recover from problems with alcohol and drugs.  Whatever else, I understand addiction and recovery from every angle – from the inside looking out, the outside looking in, and from the clinical side and the legal side, as well.  In the course of any given month, I appear and conduct (and win) more license appeal hearings before the Michigan Secretary of State’s Administrative Hearing Section (AHS) than most lawyers will ever handle in the course of their entire career.

1c0242dI don’t check other lawyer’s prices, but I have been told that my fees are higher than some others.  While I try to keep my fees reasonable, I believe that I am the poster-boy for the idea that you get what you pay for.  And to be clear, there are some lawyers who charge more than I do, although I can honestly say that many times, I’ve been called in to clean up after some of those guys have lost a case, thus proving the idea that while you never get what you don’t pay for, just paying a lot doesn’t necessarily mean you’re getting the best; instead, it just means you paid too much.  When it comes to winning back your driver’s license, you must understand that there is an additional cost to losing beyond the money.  If you lose your appeal, you cannot file another for a full year.  Beyond that, you’ll have to fix all the mistakes that caused you to lose the first time.  At least with me, a client has the certainty of knowing that they’ll only pay me once and they will get back on the road.

The quality of service from my office is on a whole different level than what I suspect anyone else provides.  In general, I think a lot of the hype around “better service” is a bunch of BS.  When I order something online, I’m concerned about service only to the extent that the right product (meaning one that matches the description I relied upon in placing it) is sent to me quickly and correctly.  I don’t care if my order is processed by a robot, some guy in a tank top and shorts, or some guy in a tuxedo and white gloves.  License restoration cases, however, are different.   My first meeting with a new client takes about 3 hours (often, a bit more) in my office.  And let me be perfectly candid: I’m a really nice guy and consider my practice an opportunity to help people, but I’m still in business to make money, so I don’t keep these appointments long just so we can talk baseball, or anything like that.  In that same way, as far as my guarantee goes, I don’t make my money having to re-do a case a second time; I make my money winning them the first time, meaning I’m as invested in a successful outcome as my client.  I am thorough in a way that takes time.  There are no shortcuts to lasting success.

In part 1 of this article, we began looking at ignition interlock violation hearings.  This is a 2-part article, and is 1 of 3 loosely related Michigan driver’s license restoration subjects: The first article examined the standard of proof required to win a license appeal, while the second focused on the Michigan Secretary of State hearing officers who decide these cases (by applying the standard of proof), and this third article, which looks at ignition interlock violations and analyzes how the different standard of proof used here and the hearing officers are essential components of these cases.  In part 1, we examined the standard of proof required to win a violation hearing, and then talked about submitting evidence to overcome the standing presumption that, when violated, you either missed or failed a retest, had 3 startup failures within a monitoring period, or somehow did something to tamper with or otherwise circumvent the interlock unit. We’ll pick up here, in this 2nd part, I will survey how all of this plays out in the real world in each of those situations.

violation-of-rulesLet’s walk through those 3 common violations in turn.  As I pointed out before, if you miss or fail a rolling retest, the least likely explanation is that you actually did provide a sample and passed with triple zeros (.000), but that the machine simply reported otherwise.  Even if you missed the test because you were rescuing a baby from that proverbial burning building, chances are that the interlock machine is right when it indicates that you missed the required test.  The same holds true for a test that is positive for alcohol.  There are a million explanations about how or why that test result could be errant because you were not drinking, but the chance that you actually provided a sample that incorrectly detected some kind of alcohol is almost nil.  It could be that you spilled hand sanitizer on the handset, or any of those million other reasons, but the point is that it is almost certain that the machine did not somehow detect alcohol that simply wasn’t there.  Something made it register alcohol, as innocent as the cause may be.

The burden of proof you carry is to come forward and explain to the the how and why of it.  If you missed a test, then you are expected to show that you went to the police station and obtained a PBT or otherwise took an EtG test, or thereafter, within a few minutes somehow verifiably provided a negative sample.  If you don’t have those things, then you have to provide an explanation that counts as evidence to counterbalance the presumption that you missed the test or otherwise failed it because you had consumed alcohol.  Think of the scales as going from -10 to +10, with 0 being even.  In a missed retest situation, the scale that says you missed (presumably because you were drinking) sits at about a +4, meaning that the other scale, the one in your favor, sits at about a -4.  You need to add +5 to it to get it back to midpoint and then tipped in your favor.

This is the third article in a loosely-related series about the Michigan driver’s license restoration process.  It is a bit longer than the previous 2 installments, and will therefore be divided into 2 parts.  In the first article, we began by examining the standard of proof required to win a restoration or clearance appeal, and then, in the second article, followed up by surveying the role the hearing officer plays in the license reinstatement process, and how he or she must apply the standard of proof to the evidence presented to decide whether someone wins or not.  Here, we’ll conclude by looking at ignition interlock violations brought by the Michigan Secretary of State’s Administrative Hearing Section (AHS) after someone has won back his or her license.  The sheer number of these violations has grown so much in recent years that I probably have at least 1 or 2 on my schedule every week.  The reason I have included this topic in this trilogy is that being familiar with both the standard of proof that’s applied in deciding violation cases (which is different from the standard of proof used to decide whether to grant a license or not in the first place), and the hearing officer who decides it are critically important components to success.  As with each of the previous articles, this one stands on it’s own, but really comes to life when read in combination with the others. is no diplomatic way to put this other than to just candidly say that ignition interlock violations suck royally.  By the time you officially learn you have one, it comes in a notice from the Secretary of State informing you that, in a few days, your license will be revoked all over again, and the only thing you can do about it is to file an request within 14 days for a hearing to challenge the re-revocation (technically called a “reinstatement of original action”) or your license will stay revoked.  There is no way to head off a violation or the upcoming revocation once the notice arrives in the mail, meaning that you will be unable to drive for a while no matter what you do.  Here, it is necessary to understand the different burden of proof used in violation cases and how the hearing officer applies it.  While it goes without saying that anyone being violated is not happy, it does no good to be angry with the hearing officer, because it is not him or her who “violates” anyone.  Instead, the the hearing officers are assigned, at random, to decide violation cases within the framework of the AHS rules by applying the relevant standard of evidence.

To the extent possible, I always try to avoid using legalese (which I often describe as “legal mumbo-jumbo”), so my reference to the “relevant standard of evidence” in the last paragraph is rather deliberate.  In the first article, we made clear that to win a license appeal, you must prove your case by what is called “clear and convincing evidence.”  If there is any good news within the context of ignition interlock violation cases, it’s that they are decided using a lower standard of proof, known as “preponderance of the evidence.”  At its simplest, preponderance of the evidence simply means tipping the scales beyond even, in one direction or another.  “Clear and convincing evidence” is a much higher standard than “preponderance of the evidence,” but that alone doesn’t make winning a violation hearing easy.  As we’ll see, when you walk into a violation hearing, it’s not like the imaginary scales of justice are sitting evenly lined up, and all you need to do is add just a little evidence to tip them in your favor.  Instead, because of the allegation that you either failed or missed a rolling retest, had 3 positive-for-alcohol startup failures within a download period, or otherwise did something to tamper or circumvent the interlock unit, the scales are already tipped way against you (to a greater or lesser degree, depending on the allegations) and your job is to tip them back to the even point, and then just a bit more, in your favor.  Let’s see how all this works…

In the context of a Michigan driver’s license restoration or clearance appeal, the most important person, by far, is the hearing officer that will be presiding over your case.  In the prior article about the standard of proof in license reinstatement cases, we examined how the evidence must stack up, and the criteria the hearing officer uses to measure it.  Since it ultimately is the hearing officer that will decide whether your evidence is “clear and convincing” (or not), it helps to more fully understand his or her function in the whole license appeal process.  In this short article, we’ll return to a subject we have not visited for a while – the role of the hearing officer in license restoration and clearance appeal cases.  Although this article stands on its own, I suggest first reading the prior article about the standard of proof, as this and the next article are intended as a kind of loose series.

imagesMany people who hire me to win their license back have tried to appeal before and lost, either on their own, or with some lawyer who probably said that he or she “does” driver’s license restoration cases.  It is normal for someone who has lost to be upset at the hearing officer who denied the appeal, especially if the person is genuinely sober.  This is where you need to understand the hearing officer’s role as directed by his or her employer, the Michigan Secretary of State Administrative Hearing Section.  Granting or denying an appeal isn’t so much about believing that someone is or isn’t sober, but rather determining if the person has submitted proof that meets the clear and convincing evidence standard.  Here, just like in the previous article, we need to understand the directive of the main rule governing license restoration and clearance cases, because it begins with the following mandate, “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…”  The key here is the “shall not” language, because it is a negative instruction to the hearing officer.  The rule does not say, for example, that the hearing officer “can” or “may,” grant the appeal, but rather that he or she “shall not” approve it unless the person trying to win back his or her license proves certain things by what is defined as “clear and convincing evidence.”

It may seem like we’re repeating things from the previous article, but it is critically important to  understand the wording of the rule, because it requires the hearing officer to to deny an appeal absent “clear and convincing evidence.”  The hearing officer isn’t supposed to vacillate between “yes or no,” but rather just think “no” until your evidence makes him or her conclude “yes.”  And as one-sided as this may sound, the hearing officer is the state’s protection against putting someone who is a risk to ever drink again back behind the wheel.  Never lose sight of the fact that the state would rather incorrectly deny 1000 people who are really sober (but came up short in proving that) than it would ever want to put just one risky drinker back on the road.  The 2 key things that must be proven in a license appeal are that the person’s alcohol problem is “under control,” meaning a person can at least reasonably approximate the point at which he or she stopped drinking, and that the person’s alcohol problem is “likely to remain under control,” meaning that the person is a safe bet to never drink again.  In other words, winning a license appeal is about demonstrating that you quit drinking and have the tools and commitment to never drink again, and it is the hearing officer’s job to approve only people who prove that by clear and convincing evidence.  So who are these people…

To win a Michigan driver’s license restoration or clearance appeal, you have to prove 2 specific things: First, that your alcohol problem is “under control,” meaning that you can fix a sobriety date, and second, that your alcohol problem is “likely to remain under control,” meaning that you are a safe bet to never drink again.  In this article I want to shift the focus from the specific things you have to prove  to how you prove them.  This is called the standard of proof.  Most readers will recognize that, in a criminal case, for example, the standard of proof required to convict someone of a crime is proof “beyond a reasonable doubt.”  To win a license appeal pending before the Michigan Secretary of State’s Administrative Hearing Section (AHS), the body that decides whether you get your license back or not, you must prove your case by what is called “clear and convincing evidence.”  If you read 12 articles about the meaning of “clear and convincing evidence,” you’ll probably get 13 different opinions.  Fortunately, in the context of a license restoration or clearance case, the meaning is pretty straightforward, so this, fortunately, won’t be a long article. we analyze the “clear and convincing evidence” standard of proof, it will be helpful to understand how it’s applied by the AHS hearing officers.  This is not putting the cart before the horse; if one was to examine the rubber composition of car tires, for example, it would be most helpful to understand how they are to be used, because snow tires built to last for several years have a very different application than race car tires designed to last a mere 50 to 100 laps around a track.  In the context of a driver’s license restoration or clearance appeal, everything is decided under the standard of Rule 13.  We’ll skip all the legal mumbo-jumbo here and go right to the relevant part of what the rule says, and then see what that means in the real world.  Rule 13 begins this way: “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…”  What is significant is that the rule, which really is an instruction to the hearing officer, begins with a NEGATIVE mandate; it tells the hearing officer that he or she “shall not order that a license be issued unless the petitioner (the person trying to win his or her license back) proves (the things required to be proven) by clear and convincing evidence…”

The set-up here is that if you present a case with 99 good reasons why you should win, but there is also 1 good reason why you should not, then you’ll lose.  The hearing officer is essentially being told to look for a reason or reasons to NOT grant the appeal.  Imagine the hearing officer being put in charge of inspecting a submarine to make sure it was okay to go underwater.  Would a report of it’s safety seem “clear and convincing” to you if it came back and said that it was 99% waterproof, except that rivet #299 was missing?  Hell no.  You’d wonder how soon until the passengers drown.  In that same way, the idea of “clear and convincing evidence” in a license appeal means that after the case is presented, the hearing officer should be left with no unanswered question.  “Clear,” in this sense, simply means clear, as in no need for further clarification or explanation.   The real takeaway from that rule is that the hearing officer is directed to make sure the case, as presented, is air-tight.