Michigan Criminal Defense Lawyer Blog
The Driver’s License Restoration process is just that: a process. I have covered pretty much every step of that process within the various articles of the Driver’s License Restoration section of this blog. Equally important as each, or any, of the steps in a License Appeal is how the case is proven. By “how,” I mean the legal “standard of proof” that must be met in order to win.
Think about this for a moment: When you hear the phrase “win a License Appeal,” what comes to mind? Winning, of course, but what else? Doing enough to win, right? Proving whatever it is that needs to be proven. But exactly what does that mean?
In a Driver’s License Restoration Appeal, the standard of proof that must be met for a person to actually win is called “clear and convincing evidence.” While this sounds complicated, it is really rather straightforward, and can be best understood by seeing how it falls between the standard of proof required to win a lawsuit and that required to convict someone of a crime.
Now, imagine those famous scales of Justice. Pretty much everyone understands that if one person is suing another, in order to win the lawsuit, the person doing the suing must “tip the scales.” This legal standard of proof is called “preponderance of the evidence,” and is often described as “50.01% to 49.99%”
Likewise, we generally understand that, in a Criminal case, the Prosecutor has to prove a person’s guilt “beyond a reasonable doubt.” That means the scales tilt as far down on one side as they’ll go, sending the opposite site as high up as it will go. “Beyond a reasonable doubt” is a much higher standard of proof than “preponderance of the evidence.”
Where does “clear and convincing evidence” fit in? It almost sounds like it would fit nicely about halfway between “preponderance of the evidence” and “beyond a reasonable doubt,” doesn’t it? And while that’s not exactly accurate, it isn’t far off the mark, either.
Let’s hit the pause button here for a moment. Before we define and position “clear and convincing evidence,” let’s examine why it is so important in the first place.
Statistically, somewhere between two-third to three-quarters of all License Appeals lose. Before the reader falls over with a coronary, let me point out that I guarantee I’ll win any License Appeal I accept, or the next one is free. I do this because, out of the last 2 years or so, I have won 171 out of 173 of the Appeals I have filed. These dire statistics, therefore, DO NOT apply to the cases I handle.
The reason so many cases lose is precisely because the person Appealing fails to prove their abstinence and likelihood that they will remain abstinent by clear and convincing evidence. Whatever the reasons or reasons for the Denial of any given License Appeal, it always boils down to the person NOT having proven their case by clear and convincing evidence. This means that if a person only submits one Letter of Support, instead of the required three, they will have failed to prove their case by clear and convincing evidence. Similarly, if their Substance Abuse Evaluation contains an unfavorable Prognosis, they will, likewise, have failed to prove their case by clear and convincing evidence. The larger point here is that whatever evidentiary failure causes a License Appeal to lose, it amounts to, or, more accurately boils down to, a failure to prove the case by clear and convincing evidence.
The issues that need to be proven in a License Appeal are addressed in numerous other articles on this blog. Here, we’re talking about how they need to be proven, rather than what needs to be proven. For the reader not yet familiar with those issues, the easiest way to learn is to go back to the Driver’s License Restoration category of this blog, and start reading from the bottom of the section upward. There are over 70 articles examining every aspect of this subject, so rest assured every single legal issue is covered in as much depth as anyone imagine, or tolerate, for that matter.
Now, in terms of positioning “clear and convincing evidence” in its rightful spot between “preponderance of the evidence” and proof “beyond a reasonable doubt,” perhaps a baseball analogy will help:
“Preponderance of the evidence” means you don’t strike out. It means getting on base, either by getting a walk or hitting a single.
Proof “beyond a reasonable doubt” essentially means hitting a home-run.
“Clear and convincing evidence” would amount to hitting a triple.
Another analogy would be to imagine a standard, 12-inch ruler. “Preponderance of the evidence” means getting just past the 6 inch mark, even by smallest degree. Proof “beyond a reasonable doubt” would push the mark to about the 11-inch point.
“Clear and convincing evidence” would put that mark to just past the 9-inch point. In this analogy, and in reality, “clear and convincing evidence” is closer to proof “beyond a reasonable doubt” than it is “preponderance of the evidence,” although not by very much. It is a little past halfway between the 2.
In the real world, it means that whatever proof is offered of a person’s abstinence from alcohol, and the likelihood that they will continue to remain abstinent must be good enough to leave the Hearing Officer with no unsettled questions. A real-life example may help illustrate this point:
On the Substance Abuse Evaluation form, there is a section that requires a listing of all of the person’s alcohol-related driving convictions. Next to the information about the charges and dates is a box that asks for the person’s BAC, “if known.” That “if known” language is in very small print, and often missed by Evaluators. Without proper preparation, a person will often give their best guess as to their BAC at the time of any Arrest for DUI. Say a person has 2 DUI’s, and says their BAC, at the time of the 1st, was a .13, and at the time of their 2nd, was a .14.
At the Hearing, it is pointed out that their actual BAC (the Secretary of State has this information), at the time of their 1st Arrest, was, in fact, .15, and at the time of their 2nd Arrest was a .18.
The Hearing Officer, in Denying the Appeal, will point out that he or she is not sure to what extent, if any, knowing the actual BAC numbers would have affected any of the conclusions drawn by the Evaluator. Perhaps it would have made no difference, or perhaps it may have made only a little difference. On the other hand, the Hearing Officer might say, such accurate information might have made a bigger difference in the conclusions reached within the Evaluation itself. Not knowing, the Hearing Officer is left with an unresolved question.
And that unresolved question means the person Appealing has failed to prove his or her case by “clear and convincing evidence,” and the Appeal will be Denied.
If this sounds tough, it is. This does explain, however, why the vast majority of Appeals lose. This is why anyone trying this on their own can only hope to get lucky, and why anyone hiring a Lawyer who is not a bona-fide License Restoration Lawyer is taking a huge risk, as well.
Knowing that each and every thing that must be proven in a License Appeal must be proven by “clear and convincing evidence” affects the whole case. This underlying standard of proof impacts every aspect of preparation. It requires a degree of care much higher than one might ordinarily imagine. In my Practice, the very first meeting I have with a new Client last at least 3 hours. That high degree of detail requires and equally high degree of preparation, and that takes time. There are no shortcuts to winning a License Appeal.
To undertake a License Appeal without understanding the implications of having to submit evidence and prove issues “by clear and convincing evidence” means a person is almost doomed to fail at the outset, and the statistics back that up. It essentially means that, on a scale of 1 to 11, a person needs to hit the “9’s” on every mark.
The truth is that License Appeals are exercises in detail. Still, a person can come back again and again and continue to lose, or they can set out to do it right the first time, or at least the next time after a loss. Whatever the situation, if the phrase “clear and convincing evidence” isn’t a foundational part of their preparation, they can count on being Denied.
On the other hand, if things are done correctly, and up to the legally required standard of proof, a person can get back on the road the first time they try.