Michigan Criminal Defense Lawyer Blog
Every Michigan driver’s license restoration and clearance appeal is decided by a hearing officer. Technically called an “administrative law examiner” (for all practical purposes, the same thing as an “administrative law Judge”), a hearing officer is a licensed attorney employed by the Michigan Secretary of State’s Office of Hearings and Administrative Oversight. Because they decide all license appeal (including implied consent and ignition interlock violations) matters, SOS hearing officers serve an incredibly important function.
For as much power as they have to approve or deny license appeals, hearing officers are constrained to exercise it within very strict rules. This is important, because even many lawyers don’t know the ins and outs of these rules, and fewer still work with them enough to really understand how they are interpreted and applied by each hearing officer. People who lose a “do-it-yourself” license appeal (or who lose with some lawyer who does not concentrate in this field) often become frustrated at their lack of success, and wrongly blame the hearing officer, without understanding how the application of the rules controlled the outcome of their case.
Although the governing rules are written in black and white, the way each hearing officer interprets certain parts of them can vary, essentially meaning that there is a lot of gray area. This is where the uniqueness of the various hearing officers matters, and why it is very important for us, as driver’s license restoration attorneys, to know each one, and how he or she does things. Something that one hearing officer couldn’t care less about may be a complete deal killer with another. If the lawyer doesn’t know how this applies to every part of a case, then he or she is not properly prepared to move forward with it.
Being able to win a license appeal and drinking alcohol are mutually exclusive things. The Michigan Secretary of State has drawn a line in the sand: after 2 or more DUI’s, the only people who will ever be allowed back on the road are those who can prove they have quit drinking for good. The state sees anyone who has had his or her license revoked after multiple DUI’s as too much of a risk when it comes to alcohol. It may not be able to stop such a person from drinking anymore, but it’s not going to let them drive as long as they do. You can’t get past the fact that people who don’t drink are exactly zero risk to drink and drive.
Let me be very clear about this: even though we don’t do administrative reviews, it is not my intention to try and dissuade anyone who wants to give it a shot from doing so. I could write a book about all the things that can, and usually do go wrong with these “appeals,” but for all that effort, it’s far easier for me, instead trying to talk anyone out of trying an administrative review, to just say give it a whirl; if you win, then good for you, and if you don’t, then call us. For everything else I could say, the reality is that many of the people who hire us for a “proper” clearance have already tried to do it on their own, and called us after losing.
License restoration and clearance appeals are decided under strict rules that essentially require a person prove, by what the law defines as “clear and convincing evidence,” that he or she has not consumed any alcohol (or used any drugs) for a a “sufficient” period of time (generally, my office requires a minimum of 18 months’ clean and sober), and that he or she also has the commitment and tools to remain alcohol (and drug) free for good. In other words, a person has to prove he or she has honestly quit drinking (and/or getting high) and is a safe bet to never drink or use again.
It helps to know why the Michigan Secretary of State does things the way it does. The written law specifies that “The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence,” that his or her alcohol problem is under control, and likely to remain under control. This means that the hearing officer does not sit impartially, as if he or she is holding a set of evenly balanced scales of justice, in order to decide “yes” or “no”. Instead, they start out with the scales tipped all the way to the “no” side and then require that you pile on enough evidence to tip them the other way.
As reassuring as that sounds, the simple fact is we really make our money winning these cases the first time around. As much as our guarantee matters, my team and I basically count on NOT having to do any case a second time. This is our business model. In order to make that happen, we have to be careful in our case screenings and make sure we don’t take every case that comes our way. In order to provide our guarantee, we have to turn away plenty of people who are more than willing to pay our fee, but are not otherwise eligible and qualified to win.
Sobriety is one thing, but support for it is another. Sobriety comes from the inside, while “support” mostly comes from the outside. Although they’re separate issues, the amount of time a person has been sober and the kind of support they do (or don’t) have interacts in a way that directly affects how a Michigan Secretary of State hearing officer will perceive his or her case. Just as with sober time, the more support a person has to stay sober, the better, especially when it comes to wining a license appeal.
If there is one constant about the driver’s license restoration and clearance process, it is always evolving and changing. The way things worked just a few years ago is very different from how they work now. For example, up until recently, having a medical marijuana card was a guaranteed shortcut to losing a license appeal. This is no longer the case, however, because the state’s thinking on this issue has evolved. Nowadays, medical marijuana card holders (albeit for more serious conditions) can and do win license appeals.
It’s a given that it was a hassle to have gone through all the court stuff from a DUI, including probation and testing and having had to paid fines and costs and whatever else. The problem, however, is that the frustration most people feel about having, as they say, “to jump through hoops” to win their license back, while very real, also misses the fact that after racking up multiple DUI’s, the license revocation process is every bit as much about protecting the public as it is about punishing the offender.
In this article, I want to do a brief overview of what “clear and convincing” means in the real world, because it’s not only the very key to success, but is also dreadfully overlooked by just about everyone except the hearing officers who decide this cases, and anyone who finds him or herself reading an order denying their appeal. “Clear and convincing evidence” is the legal standard of proof required to win a license appeal, and it is specifically required by the rules that govern all such cases. You either meet this standard, or you lose.