Michigan Criminal Defense Lawyer Blog
In a recent article, I wrote about the importance of being “prepped” for a Driver’s License Restoration Appeal Hearing. The focus of that article was on the general process of preparation for License Hearing. Here, we’ll narrow that focus to a specific question that I am often asked by my Clients once the Notice of Hearing is sent from Lansing, and the name of the Hearing Officer who will be deciding the Appeal is disclosed: “What do you know about this Hearing Officer?”
In every such case, the answer is ” a lot.”
As usual for me, this will be a long article, and will, like so many others I have written, be broken into 2 parts.
As I have noted on my website and in some of the articles in the Drivers’ License Restoration section of this blog, I have every case I handle set for a live Hearing at the Livonia branch of the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD). There are only 3 such DAAD Hearing Offices in Michigan: Lansing, Grand Rapids and Livonia.
Before we get into the meat and potatoes of the question that is the subject of this article, I should also reiterate that I only do “live Hearings.” In other words, I NEVER do any kind of “video Hearing.” This is noteworthy because very recently, the DAAD began allowing Hearings to be conducted at the Clinton Township Branch of the Secretary of State Office on Metropolitan Parkway (16 Mile) and Gratiot. This Branch Office is only about 4 or 5 minutes from my Office in Mt. Clemens, while getting to the Livonia Office takes about an hour, or even a bit more, from my front door. Despite that, it has never so much as crossed my mind to do anything other than show up, in person, for a live Hearing in Livonia. I not only believe in live Hearings, I ONLY believe in live Hearings.
This means that, over the course of my career, I have had every case I have ever handled set of a live Hearing in the Metro-Detroit DAAD Hearing Office. Formerly located in Southfield, this Office moved to Livonia a few years ago.
Having appeared before this same group of Hearing Officers again and again, I have certainly come to know the idiosyncrasies and particularities and quirks of each, and quite well, at that. This is a HUGE benefit as I prepare the Client to testify before any one of them.
And while it may sound too good, or nice, to be true, the fact is, I like and respect each and every one of the Hearing Officers in Livonia. While there are times when I’d rather have one over another in any particular case, I can honestly say that I have never seen any one of them do anything less than give an Appeal their full consideration. This is more than I can say for some other “Officials” before whom I have appeared, if you catch my drift.
Sometimes, a Client will come to see me, already mad at, or with an attitude about Hearing Officer “X.” The reason for this is pretty simple; the Client filed a prior License Appeal (without me) and was Denied. And Hearing Officer “X” is the person who decided against them. This is a really hard pill to swallow for those who went into the License Appeal process really and truly Sober, only to be rebuffed for not having adequately proven that Sobriety, or their commitment to it.
I have covered, in a previous series of articles, how those who have tried a License Appeal before, on their own, (or with some Lawyer who said he or she “does” these kinds of cases) and lost, make the very best Clients. I have also, in another series, pointed out that having lost before, these Clients present with another obstacle that I must overcome at any Subsequent Hearing, and that is fixing what caused the prior Appeal to lose in the first place. Those previous articles are good background to make better sense of the subject of this article.
Anyway, when I meet a Client who has tried before and lost, I will typically ask to see their Denial Order, and will point out to them how the Hearing Officer was legally required to come to his or her decision, and that it’s not about the Hearing Officer just “believing” the person. In other words, I tell them not to take it personally. Imagine if you worked at a company that reimbursed parking expenses, but ONLY with a valid receipt. If the person in reimbursement, who likes you, and trusts you, one day has to tell you that they have no doubt you spent $10 in parking on such and such a date, but without a receipt, cannot reimburse you, otherwise they’ll be risking their job, you’d understand, right? Losing a License Appeal, especially for those who try it on their own, is similar to that.
To put it differently, it’s not about “believing” a person is Sober, and likely to remain Sober, it is about the person being able to satisfy the Legal requirement that they prove their case “by clear and convincing evidence.” If the person’s proofs don’t stack up to that rather high threshold, the Hearing Officer MUST Deny the Appeal.
In order to meet the burden of proving that:
- The person’s alcohol problem is under control, and
- The person’s alcohol problem is LIKELY to remain under control,
by “clear and convincing evidence,” the person Appealing will be much better off knowing what their particular Hearing Officer thinks is important to make those proofs.
There is a certain, core group of questions that every Hearing Officer is going to ask. Then, beyond those, there is another, larger group of questions that are unique to each individual Hearing Officer. And to be clear, it may not be that all such questions asked by one Hearing Officer are entirely different than those asked by another, but rather, it’s how those questions are asked, and the specific information sought by the question, and the way it’s posed, that varies from one Hearing Officer to the next.
Now, I think, we’re at the point where I start to talk a little about those 5 distinct personalities. Rather than identify any particular Hearing Officer by name (I’m sure any of them who read this would love that…), I’ll talk about them using the “nickname” I have developed to describe them to my Clients.
1. The Nice Guy. This Hearing Officer is just that, a truly nice guy. A man without a mean bone in his body, even those Clients who hire me after they tried on their own and lost, and who bring in a Denial Order with his name on it, will uniformly agree that he was kind and nice at the Hearing. Beyond that, however, this Hearing Officer will frequently ask about a person’s personal plan for Recovery, and what specific things they believe are important to both their ability and commitment to remain Sober. He will also typically ask what I think is the most important question that can be asked at a Hearing (and yet he’s the only Hearing Officer to ask it), which is why, given the person’s background of drinking, and drinking and driving, he should believe that the person will remain completely alcohol free for the rest of their lives. From my perspective, this is a great opportunity for a Client who is, really and truly Sober, to give a compelling and winning narrative. However, rehearsing that answer is a complete waste of time if the case winds up before one of the other 4 Hearing Officers who don’t ask the same question.
2. The Spiritual, or “Essence” Lady. This Hearing Officer may at first appear to be more “all business” than some others, but that initial impression soon changes as she asks questions with a smile on her face. Underneath her questions, however, lies what one could almost describe as a “sub inquiry” into the “essence” of a person’s Recovery, more than the specific facts of it. In other words, it’s almost as if she can “sniff out” a true commitment to Sobriety and differentiate that from someone who can talk all day about the mechanics of alcoholism and Recovery, but who seems to lack a deeper, almost “spiritual” connection to Sobriety. With AA Clients, she will often ask the person to describe a step or steps that they have recently discussed at a meeting, or a step or steps that are important to their Recovery. This would be fatal to anyone who has wasted time trying to memorize the steps of AA, because, beyond being able to simply recite them, they’d be without the ability to hold down an intelligent discussion of their meanings. For non-AA people, she will often ask what the person would do if they felt the urge to drink. It may sound almost funny here, but it is NOT an adequate answer to that question to respond “I don’t have those urges anymore.” She will simply say “Let’s assume, hypothetically speaking, that you did have such an urge….”
3. The Nice Lady. Kind of a counterpart to the nice guy, this Hearing Officer just exudes kindness and niceness. A person might almost perceive her to be “in my corner,” (meaning their corner) except that she is also a person of integrity, duty bound to apply the Rule of Law to the cases before her. Beyond that group of core questions asked by every Hearing Officer, she tends to focus on the changes in a person’s lifestyle as evidence of a commitment to continued Sobriety. Far less interested in the mechanics of AA, or the application of any specific Recovery strategies or tools, she tends to look at more of “the big picture,” and examines how a person has built and maintained a “Sober lifestyle” to continue and support their Recovery.
This is about as good a place as any to break. Beyond risking information overload, we can begin part 2 of this article by looking at the remaining two, kind of “tougher” Hearing Officers. After we summarize their approaches, we’ll continue with an analysis of how winding up in front of any one of these Hearing Officers over another changes how the case should be presented.