Michigan Criminal Defense Lawyer Blog
In my role as a Driver’s License Restoration Lawyer, I read the decisions of the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD) almost daily. Fortunately, when reading those Orders for the License Appeals that I handle, I’m always reading a winning decision. Having won 181 of the last 183 cases I’ve handled, I can honestly say that I have almost no experience reading a Denial in any of my cases. However, many of my Clients are people who have already tried on their own to win back a License, or used some Lawyer who claims to “do” License Appeals, and lost. When they come in, part of the paperwork they bring is any previous Denial Order.
In this article, we’ll look at why a previous Order of Denial is so important in the larger job of preparing for a subsequent License Appeal that will win.
From the outside, someone might just think that you file a License Appeal, and either win or lose. Like everything else about the whole License Restoration process, it’s far more complicated than that.
To fully understand what’s involved, we need to take a few steps back from the final result of the process, and look at what goes into it. In my various other articles about Driver’s License Restoration, I have covered pretty much every aspect of the License Appeal process in detail. The focus of our examination here both governs and precedes even the very first step in that process. Let me explain:
In order to win a License Appeal, a person must prove certain things. Those “things” are outlined in the DAAD’s Rule 13, which begins as follows:
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 point of this whole detour is to point out how the Rule is written in the negative, and that the DAAD is required to NOT issue a License unless the person proves the relevant things by “Clear and Convincing Evidence.”
“Clear and Convincing Evidence” is a kind of hybrid standard of proof that falls short of what’s necessary to convict someone of a crime under the “Proof beyond a Reasonable Doubt” benchmark, but well beyond what it takes to win a Small Claims matter, where the standard of proof is a “Preponderance of the Evidence.” One way to think of it is that “Preponderance of the Evidence” requires that the scales of justice be tipped just over the 50% mark, like 50.01%. “Proof Beyond a Reasonable Doubt might be likened to tipping the scales past the 90% mark, while “Clear and Convincing Evidence” would amount to tipping the scales past the 80% mark.
To use a baseball analogy, “Preponderance of the Evidence” is like simply not striking out, and somehow getting on base, either by a walk or a single or an error or whatever. “Proof Beyond a Reasonable Doubt” is like hitting a home run. “Clear and Convincing Evidence is like hitting a triple. It is closer to “Proof Beyond a Reasonable Doubt” than it is “Preponderance of the Evidence.”
Now let’s fast-forward a bit. When a person wins a License Appeal, they win. It really doesn’t matter why. I don’t think in the history of the License Appeal process anyone has ever appealed to a Court to disagree with why they won their Appeal. Because that’s the case, some Hearing Officers will simply summarize that a person has proven their case sufficiently to warrant Granting the Appeal. Others will go into some detail and recount some of what they see as the more important points made and explain how that all results in the person winning their Appeal.
When a person loses an Appeal, however, that decision is subject to judicial review, meaning it can be appealed. In order to support his or her decision, the Hearing Officer must specifically state where and how the person failed to prove their case by “Clear and Convincing Evidence.” This is where things get interesting.
As it turns out, I can usually tell a new Client, before I ever even read whatever Order of Denial brought them to my Office, why they lost. The majority of cases that lose do so because of a questionable or insufficient Substance Abuse Evaluation. Whatever defects are present in this critical, foundational form, the very presence of those defects prevents a person from proving their case by “Clear and Convincing Evidence.”
In other cases, a person might have submitted inadequate Letters of Support, or given Testimony that hurt, rather than helped their case, or brought in a witness that didn’t wind up helping the Appeal. Whatever the cause for the loss, I must point out that it was almost always avoidable, had the person hired a bona-fide Driver’s License Restoration Lawyer. Part of the job of a License Appeal Lawyer is to make sure a case is NOT filed if it has any evidentiary defects.
Any defects in a License Appeal that cause it to lose must be “fixed” for the next Hearing. While this is often straightforward, there are cases where a person can screw things up so badly that they’ll have to wait more than a year to bring an Appeal that has any chance of success.
Let’s look at an example. It is pretty much universally understood by anyone in this field, like me, that in order to win a License Appeal, a person has to show the State that they are committed to remaining Sober forever. As a perquisite to that, a person needs to show that they understand that they have an alcohol problem. The State, in turn, wants to see a period of voluntary Sobriety. While Rule 13 indicates that a person, in most cases, needs a year of abstinence, that time frame is often longer, for a variety of reasons.
Let’s say that Don the Driver went in for a License Appeal a few months back, and it somehow came to light that he had consumed a sip of champagne the previous New Year. Obviously, Don will not have a year of abstinence under his belt, and his Appeal will be Denied. But Don must do more than just come back after skipping the toast the following New Year. He’s going to have to show that he understands that his use of alcohol the year before was, in fact a relapse, and that he didn’t even start becoming “Sober” until he realized that. Sobriety and abstinence are not the same thing.
If Don were to come and see me, we wouldn’t file his Appeal until he was able to explain this satisfactorily. For anyone in Don’s position, don’t panic. Helping a person understand and work with and through these concepts is part of my job.
That said, however, Don’s next Appeal, if it’s going to win, will need to “fix” the problem created by his New Year’s toast, and that “fix,” as we’ve seen, involves far more than just skipping the bubbly next time.
Now, in the Order Denying Don’s License Appeal, the Hearing Officer will thoroughly explain this. This way, if Don was to hire some Lawyer who just took his money and went to Circuit Court to appeal, the Circuit Judge would see the exact reason or reasons the Hearing Officer had for finding Don did not prove his case by “Clear and Convincing Evidence.” If that wasn’t the case, then Don wouldn’t so much be appealing his Denial as he would be going for a new Hearing.
And that’s an important aspect to these cases. When a person loses a License Appeal, they simply can’t go to Court and shout “this isn’t fair.” The person filing such an appeal must show where the Hearing Officer was legally wrong. They must show legal error. Even if a Judge could say “If I had been that Hearing Officer, I would have granted your Appeal,” unless the Judge can also point to legal error sufficient to Reverse (meaning undo) the Hearing Officer’s decision, that decision will (and must) stand. This is why so very few appeals to Court win, and why I never do them.
Most often, anyone who has tried before and lost fall into one of two groups: Those who tried on their own, and learned that there’s too much to all this to try again without proper legal Counsel, and those who hired some Lawyer who tried an Appeal, but obviously didn’t know enough to win. People in this second group are often mad, feel ripped-off, and are skeptical about hiring any other Lawyer. That’s understandable, but, I should point out, would have been avoided had they hired a Lawyer who, like me, specializes in License Appeals, and doesn’t merely claim to “do” them, along with a million other kinds of cases.
Part and parcel of what I do is to carefully review any prior Orders of Denial when I first meet a new Client. Absent any screw-ups so bad that a person needs to wait beyond the 1-year Appeal period, we can begin focusing on what went wrong, and plan how to fix it.
And “fixing it” is just the beginning. I don’t win 98.9% of my License Appeals by luck. I do a comprehensive job of preparing the Client for every step, starting with preparing them to undergo a new Substance Abuse Evaluation, and that takes about 3 hours at the first meeting. It is this attention to detail that allows me to guarantee I’ll win any License Appeal I file, or the next is free. This attention to detail also means the Client and I need to closely examine what went wrong with their prior Appeal, and figure out how that fits into the preparation process.
Lately, I’ve noticed that the majority of the decisions I receive summarily explain that the Client has won their Appeal, and no more. What has not changed, however, is that those who come to me after having already lost at least once bring in an Order of Denial that is very specific and precise about the reasons therefore. In other words, I can easily show the Client how things were screwed up the first time, and help them plan around it.
No one is Denied because the Hearing Officer didn’t like them, or just wanted to be unfair. The legal issues in a License Appeal are very specific. This doesn’t leave room for any “benefit of the doubt” kind of stuff. The DAAD doesn’t care how long it’s been since a person’s last DUI, nor do they care how badly the person needs to drive. Remember,the DAAD is directed to “not order that a License be issued…” unless the specific legal issues have been proven by “Clear and Convincing Evidence.”
The DAAD is required to put, in writing, exactly why someone is judged to have not proven his or her case accordingly, and it’s very good at doing just that. While no one wants to open an Order of Denial, if that’s already happened, then that Order can at least be used as a tool to help launch a successful subsequent Appeal.
Of course, it is far better to avoid all this the first time and do it right, but many people only begin to make a proper investigation of the whole License Appeal process after they’ve already tried and lost. In those cases, fixing the errors that caused any prior Appeal to lose is job number one. Fortunately, the Order of Denial will provide what amounts to a schematic diagram of the prior, losing Appeal, and from that, a true Driver’s License Restoration Lawyer can make the next Appeal a winner.