Michigan Criminal Defense Lawyer Blog
As a Driver’s License Restoration Lawyer, I deal with the details and nuances of the License Appeal process every day. One Rule, in particular, is the centerpiece by which pretty much every License Appeal wins, or loses.
The Rule which governs Michigan Driver’s License Restoration Appeals is known as “Rule 13.” You’ll find it quoted in any number of the articles within the Driver’s License Restoration section of my Blog, as well as in my website. Similarly, you’ll find it splashed all over the web. It’s not a particularly difficult Rule to read, but I honestly think that practically no one, including most Lawyers, understands the single most important facet of this Rule.
This article will examine what’s really at the core of making a License Appeal so difficult. Rather than reprint the whole of Rule 13, we need only look at the very first part of it to see what I mean:
Rule 13.
. . .(a) 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 key words here are “shall not.” There really is no other Law or Rule of which I know that is written in the negative. This one is.
In Criminal cases, the Prosecutor must prove guilt “beyond a reasonable doubt.” In a Civil Lawsuit, the person suing must prove their case by a “preponderance of the evidence.” These standards of proof are written in the affirmative, meaning that Judge or Jury is NOT instructed to look for reasons to convict, or rule against someone. The DAAD Rulef, however, is essentially written in the negative. The Hearing Officer is instructed to deny a License Appeal unless the person proves their case by “clear and convincing evidence.”
To see how profound this “shall not” aspect of the Rule is, consider how it would read if it were written in the positive, rather than the negative. Imagine if Rule 13 read something like this:
“The hearing officer shall order that a license be issued to the petitioner if the petitioner proves, by clear and convincing evidence, all of the following:”
This is not mere word play. As it currently exists, the Rule is written in a way that has the Hearing Officer essentially LOOKING for a reason to deny a License Appeal. Just changing up those few words would change the whole job of the Hearing Officer.
This explains why many people think of the Secretary of State as “nit-picking.” It is, by Law, their job to do just that. The Hearing Officer is, by all accounts, required to review a License Appeal and look for a reason or reasons to deny it.
This means, of course, that the person filing the Appeal has to make sure the evidence prevents that. I have noted, in another series of articles, that many of my Clients are people who have tried on their own before, and lost, or who may have gone in with a Lawyer who just claims to “do” License Appeals, and lost. In those cases, I must carefully review the previous order of Denial and determine what caused them to lose, and then make sure we fix those errors that caused the loss.
What I so often hear from someone in this position is how unfair they think it is, given that they really are Sober, that they were Denied. They often want to point out how many things they have in their favor, and wonder how anyone could doubt their Sobriety, or commitment to it.
That’s when I have the difficult task of explaining the Hearing Officer’s job is to look for the reason or reasons to Deny the Appeal, and not overlook any such reason or reasons in favor of other, favorable evidence.
This means, then, that beyond the task of proving Sobriety, and proving those things which need to be proved, a person filing for a License Appeal must try to examine all the evidence with the same “nit-picky” eye that the Hearing Office is required to use.
This can be a formidable task. As much as any reader is sure to find typos and grammatical mistakes within these blog articles, they’ll understand that it is really hard to “proof” your own work. It is invariably the case that when the person is putting together the evidence for their License Appeal, it is almost impossible to concentrate on the negative.
In other words, since the focus of a winning License Appeal is, and must be, assembling the necessary proof, it becomes very difficult to reverse direction and examine that evidence from the perspective of “if I were the Hearing Officer, what could I find in here in order to Deny this Appeal?”
My job is to do just that.
Nothing in life is a guarantee, except death and taxes. Air travel is statistically the safest way to get around, yet airplanes do crash, and every year people die. There is no 100% guarantee of safe arrival when someone boards an airplane. That’s why they have flight insurance.
Likewise, people die on the operating table all the time.
What I can do, rather than wave some magic wand and magically produce the desired outcome, is to promise my Client that I will do all in my power to make sure their case is submitted as a winner. I’ll do everything I can to make sure there is no reason for the Hearing Officer to deny their License Appeal. And if, for whatever reason, that Appeal falls short, then I guarantee that I’ll do the next one FREE.
To date, I have been remarkably successful at that. I have always maintained a win rate well in excess of 90%, and I won every single case I had Heard in the year 2010 (and I had more than 70 Hearings), giving me a 100% win rate for that calendar year. For me, there’s really little risk in my guarantee, but for the Client, there is at least the comfort of knowing that, if we do fall short, they don’t have to worry about spending any more money next time.
Is Rule 13 unfair? I think so. However, I’ve worked under it for so long, that I’ve come to accept it for what it is. All the sentiments in the world won’t change that.
What is more unfair, I think, than the fact that Rule 13 requires the Hearing Officer to look for a reason, or reasons, to deny a License Appeal is that once a person loses, they have to wait a year to come back.
That might make sense in those cases where a person goes to a Hearing. Claiming that they attend AA, and then freezes on the spot, unable to recite any of the 12 steps. But in those cases where a claimed Sobriety date in one letter is different than in another, it really does seem unfair to penalize the person by making them wait another 12 months to correct what was almost assuredly a “typo.”
Again, however, be that as it may, it is the way things work.
Unfortunately, many people have to find that out the hard way.