Michigan Driver Asessment and Appeal Division Standard of Proof

Winning your Michigan driver’s license back after 2 or more DUI convictions requires that you file the proper documents and presenting evidence to the Michigan Secretary of State Driver Assessment and Appeal Division. To succeed in a driver’s license restoration hearing, you must show, by what is called “clear and convincing evidence,” that your alcohol problem is under control, and, even more important, that it is likely to remain under control. As a Michigan driver’s license restoration lawyer, my file cabinets are full of cases for people that have hired me after having tried to do this before, without my help, and then lost. Whatever the reason or reasons given for those denials, in each and every case it amounts to having failed to prove one or more of them by clear and convincing evidence.

This article will be about “clear and convincing evidence.” If you’ve tried a license appeal before and lost, this will help you understand why. If you haven’t tried yet, then this will enable you to really size up the level of proof it takes to win. To be precise, “clear and convincing” means the standard of proof that your evidence has to reach in order for you to prevail. A standard of proof is, to a large extent, an arbitrary thing. The hearing officer will judge whether or not your evidence is “clear and convincing.” In a perfect world, this would be a consistent and measurable standard, like 12 inches, or 16 ounces, but “clear and convincing” is, to a certain degree, inherently subjective, like “beautiful” or “delicious.”

Scales 1.2.jpgThus, as we try and explain a concept that eludes a precise definition, we should first clarify its application. In other words, if we ditch the overly academic and legal baloney for a minute, we can cut to the heart of the matter and talk about how things work in the real world. There are really two things you have to prove in a license appeal: First, that your alcohol problem is under control, and second (and really more important), that your alcohol problem is likely to remain under control.

I could write a whole book about proving that your alcohol problem is under control, but the bottom line here is if you lost an appeal because you failed on this point, you should blame your lawyer. If you didn’t have a lawyer, then you should blame yourself for that poor choice, and think about it every time you have to bum a ride. This is basic, foundational stuff for a license restoration lawyer, and, at least in my office, something that is my responsibility to get right, and then double check before a case is ever filed. Failing to prove that your alcohol problem “is under control” really means that a critical error was made in the preparation of your case, and the same error was made all over again in not catching it before it was filed. As mistakes go, this is equivalent to a surgeon amputating the wrong leg on a patient, and then shrugging before he lops off the other.

The main task in a Michigan driver’s license restoration case is to prove that your alcohol problem is likely to remain under control. Here too, we could spend eternity analyzing and explaining things, but for purposes of this article, we can just say that you to prove that you’re a safe bet to never drink again. That simple definition, however, belies the complexity of having to convince a hearing officer that you yourself truly believe you can never again consume alcohol, and that you have the commitment and tools to follow through with that. Let’s talk about how that’s done…

At the risk of stating the obvious, “clear and convincing” really has 2 parts: clear, and then convincing. The two parts sort of meld together, at least when we talk about evidence being “clear and convincing,” but proofs that only match or exceed one of the two elements will result in a lost appeal.

“Clear” means just that: clear, as in no questions. If your friend calls you up, and you agree to help him out by going to four places in a certain order (A, D, B and then C) and as you’re about to end the call, you ask something like “which place am I supposed to go to last,” then your mission is not “clear.” Clear information doesn’t give rise to any questions, and it certainly doesn’t leave any unanswered questions. If you’re presenting your license appeal to a hearing officer and he or she is left wondering about something, and particularly something about whether you have the commitment or tools to remain sober, then you’re evidence is not clear. When you’re done presenting your case, there can be no doubt or unanswered questions about anything.

To get a sense of what I mean, think about writing something explanatory, like a letter, or a paper, or even this article. When I write any of my blog articles, for example, I usually know what I want to say in advance. Sometimes, the article takes over, but even as I’m writing it, and even if the direction somehow changes, I know the point or points I’m trying to get across. Most of the time, I’ll write my first draft one day, and then come back another day to rewrite it (remember, as the saying goes, “there’s no such thing as good writing, just good rewriting”). When I look at my first draft a day or more later, even though I know what I was trying to say, I see all kinds of gaps and holes that need filling and revising to clearly communicate my points to the reader, who is not in my head, and therefore does not know what I’m trying to say, unless I am successful in clearly saying it. Most of the time, as I look at the first draft, it is obvious that I got too caught up in knowing what I was trying to say, and seemed to take some things for granted. As I rewrite the article, the revised version begins to explain those things that kind of got passed over because I knew what I was talking about when I was writing it, but wouldn’t be clear to a reader without being re-written.

Probably everyone has had similar feelings when he or she re-reads something they’ve written, be it a letter, a paper, or even an email. You can’t have any of that in a license appeal. If you’re asked, for example, whether or not, even 25 years down the road, you think you might at least be able to take a sip of champagne at your own child’s wedding, and you hesitate for a moment, and then say “no,” the hearing officer may interpret your hesitation as not having been a clear renunciation of the idea that you could ever drink again, and your appeal will be denied. If you’re reading this after having tried a license appeal before, then you certainly know that in this setting, there is no such thing as “the benefit of the doubt.” In fact, if there is any doubt about any of the evidence in your case, you’ve just failed to meet the “clear” requirement of “clear and convincing” standard.

If that’s not a rosy picture, hold on, because it gets worse before it gets better. Even if your evidence is crystal clear, it may not be convincing. In a real world setting, most people who have evidentiary problems fail to jump over the “clear” hurdle more than that for “convincing,” but there are situations where even clear evidence falls short of being convincing.

This is perhaps best and most easily explained by sticking with the most important issue you must prove to the DAAD – that your alcohol problem is “likely to remain under control.” Going back to the question of whether or not, even 25 years down the road, you could have a champagne at your own son or daughter’s wedding, if, instead of hesitating with your answer, you were to promptly respond, “I don’t think so,” then you’d have given a rather unconvincing answer, and you’d lose for that reason. Imagine you’re the hearing officer; you would almost certainly react differently if the person testifying before you answered that question by exclaiming, “absolutely not!”

To get an idea of just how a standard “clear and convincing evidence” is, let’s compare with “beyond a reasonable doubt.” We all know that to convict someone of a crime, the evidence has to be “beyond a reasonable doubt.” What does that mean to you? If you had to decide whether someone was guilty of murder or not, at what percentage of proof would you feel comfortable convicting him or her? Think about it; would you feel okay finding someone guilty if he or she was 90% likely to have committed the crime? Would a 10% chance that they were innocent be acceptable? I bet not. Actually, when you think about it, even 98% isn’t really good enough. Could you send a person to prison for life and not have any reservations even if you felt he or she was 99% guilty? Haven’t we all said about someone we thought did or said something that we’re “99% sure” it was him or her, but, even so, didn’t feel that was enough to do or say anything?

Clear and convincing evidence is rather close to proof beyond a reasonable doubt. Do you think a hearing officer would approve a case if he or she had a reasonable doubt that the person filing the appeal has the commitment and tools to stay sober?

My point here is that to win a license appeal, you have to leave no room for doubt about your having stopped drinking as well as your ability and intention to remain permanently sober. If you leave anything unanswered, or you leave any doubt, or you otherwise just don’t hit a home run, you will lose. In fact, as I prepare my clients, I often use the home run analogy. In terms of putting together a winning case, we have to hit it out of the park. Making sure we’re able to do that is my responsibility, and as long as I have a truly sober client to work with, not only can and will I do that, but I’ll back it up with a guarantee, as well.

Here’s the ugly part of the license appeal process: The hearing officer is essentially legally required to look for a reason to deny your case. The rule governing license appeals, known as rule 13, contains the legal language that sets out the “clear and convincing evidence” standard followed by the DAAD. This all makes sense if we look at the rule’s opening paragraph:

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…

This is basically a negative mandate to the hearing officer deciding any given case. The rule could more simply have been written to say something like “the hearing officer shall order that a license be issued to the petitioner if he or she proves, by clear and convincing evidence, all of the following.” Yet it wasn’t. That’s no accident, because it took a lot more thought and work to write it using a double negative than otherwise. There is a reason to all this…

The DAAD is painfully aware of the generally well known statistic that despite our best efforts, less than 10% of all alcoholics get better. Statistically speaking, more than 95% of all alcoholics die of their disease, an average of 26 years earlier than they otherwise would have. It is also known that 3 out of 4 alcoholics never get any help for their problem. Whatever your statistical beliefs, the bottom line is that it is only a lucky and small minority of people with a drinking problem even try to get past it, let alone actually beat it.

The state is well aware that of all the people from whom it takes a license for multiple DUI’s (and whom it has legally concluded do, in fact, have a drinking problem), most will show up sometime down the road and ask for it back. Of course, every one of these multiple DUI drivers will say that everything is fine, that they’ve gotten their drinking under control, and that there’s no need to worry anymore. Yet the numbers show that less than 10% of these people actually are a safe bet to not drink again, and consequently don’t present an unacceptable risk to put back on the road. Flip that around, and you have more than 90% of the people with a drinking problem unable to get better. That’s a scary statistic, and explains why the license appeal process seems so lopsided and onerous.

In practice, hearing officers often don’t have to look too deep or hard to find that a person cannot prove, by “clear and convincing evidence,” that his or her alcohol problem “is under control, and likely to remain under control.” Putting a multiple time DUI driver back on the road is like deciding to give another chance to a submarine that has sunk on 2 prior occasions. It doesn’t matter that you could list 999 good things about the sub; it only takes one problem for it to spring another leak and sink to the bottom. If you were the person tasked with inspecting that sub, you’d be looking real close to make darn sure it’s watertight. Ditto for a hearing officer in a license appeal.

In my world, “watertight” means proving your case by clear and convincing evidence. This is a very steep uphill climb, and it’s meant to be that way. This has nothing to do with “fair,” and everything to do with “safe.” If this isn’t basic, fundamental stuff or is otherwise not crystal clear to your lawyer, then you’re essentially flying blind. Your only chance to win is sheer luck, and you should be paying for that.

I make winning your license back easy. If you’ve been sober for more than a year, I can take care of the rest of these details and get you back on the road legally, guaranteed.

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