Michigan Criminal Defense Lawyer Blog
In the last series of License Restoration articles, I provided a rather candid look, from my perspective as a Driver’s License Restoration Appeals Lawyer, at why I’d rather deal with someone who has tried a License Appeal on their own, and lost, instead of someone who isn’t quite sure if they need or even want a Lawyer, and needs to be convinced of that. I noted that to anyone thinking about doing this on their own, I absolutely say “go for it.” I then pointed out that a pretty substantial part of my practice involves handling the subsequent Appeal for those who have tried on their own, and lost. And given that the overwhelming majority of those “do-it-yourself” Appeals do lose, it’s just easier to deal with them as they gear up for the second round, rather than have to explain all of this over and over again.
This article will focus on the major drawback to that “do-it-yourself” approach. There are plenty of drawbacks, to be sure, to the self-represented Appeal, and perhaps the most obvious amongst them is the overwhelming likelihood of losing, and having to wait another year to try again. I think I’ve covered that well enough, even if indirectly, in the previous pair of articles. While losing the Appeal is perhaps the most easily identifiable drawback, it is not the biggest.
The biggest drawback to the “do-it-yourself” License Appeal is that whatever caused it to fail the first time will have to be addressed and fixed the second time around.
This can mean anything. And that’s not imprecise language, that’s rather specific. The range of problems that can cause a License Appeal to fail, especially where it’s done without the oversight of an experienced License Restoration Attorney, can include anything from small, easily fixable inconsistencies or problems, to huge, catastrophic deficiencies that cannot be fully rectified even within the 1-year between Appeals waiting period.
If the reader has, in fact, tried a License Appeal before (either on their own, or, perhaps, with a Lawyer whose expertise in this area was merely that he or she “does” License Appeals, instead of being someone who concentrates in this rather niche area of the Law) and lost, then they already know how that loss is communicated. Anyone who has not been down that road, however, may not understand this part of the process. Let’s clarify:
When a person files an Appeal for Restoration of Driving Privileges, a Written Decision is eventually issued. This is technically called an “Order.” Whenever a person loses their Appeal, the Hearing Officer who denied it must write up the very specific reasons why the Appeal was denied. When I say “very specific,” I mean that every single reason why an Appeal loses must be noted in detail. This is not only done to advise the person who filed the Appeal of what was deficient, or wrong, about their case, but so that any subsequent Court Appeal of that ruling will be sustained on Appeal. This requires even more explanation.
Many people know that if they lose their Appeal in front of the Secretary of State’s Driver Assessment and Appeal Division (DAAD), they can file what is essentially an Appeal of the Appeal in the Circuit Court in the County in which they live.
What so may people do not understand is the nature of that Circuit Court Appeal. There is a common misconception that a Circuit Court Appeal is another chance for a License, or some kind of “second chance” to present the case, or even an improved version of it, all over again. That’s not how it works.
When a lost License Appeal is brought before a Circuit Court Judge, it’s what’s called an appeal on the Record. There is no new Hearing. Instead, the Transcript of the lost Hearing is presented to the Judge along with a Legal Brief which must show where the Hearing Officer made a legal mistake bad enough to require voiding out their ruling. In other words, a person must not only show that the Hearing Officer made a legal mistake, but that any such mistake or mistakes were substantial, or what’s called “prejudicial,” and resulted in an essentially illegal ruling.
Good luck with that.
While I don’t do Circuit Court Appeals, (not to be funny about it, but I win my cases, so that’s not a skill I need to develop), I have sat in Court and seen others where a Circuit Court Judge has stated, on the Record, that had they conducted the Hearing, they would have granted the person a License. However, they continue, because the Law requires them to find prejudicial error in the record of the DAAD Appeal, and they were unable to do that, the fact that they and the Hearing Officer may have arrived at a different conclusion based upon the evidence is not good enough to overturn the losing decision, and therefore it must stand. In other words, the DAAD’s decision may not be or seem fair, but that alone won’t cause it to be set aside.
Add to that the fact that Hearing Officers do one thing: They hear License Appeals. They are required to be Licensed Attorneys, and in their capacity (really equal to that of an Administrative Law Judge) as Hearing Officer, they learn and become the absolute experts in License Law. All this means that they seldom make legal mistakes in License Appeals that result in their rulings being overturned. The average Hearing Officer will hear more License Appeals in 1 or 2 weeks than any Judge will hear Appeals from their rulings in a career on the Bench.
So again, good luck with that.
This means that if a person loses, the reasons for that loss are problems which need to be fixed before they file their next Appeal. In those cases where those problems aren’t really bad, like an inconsistent date noted here or there, that’s rather easily managed.
In part 2 of this article, we’ll pick up at the point where a “do-it-yourself” loss is the result of errors or problems in the initial Appeal and we’ll look at a few real-world examples of that.