Michigan Criminal Defense Lawyer Blog
Filing for an Adminstrative Review may be the ultimate shortcut to losing a License Appeal in Michigan. As a Driver’s License Restoration Attorney, my reasons for urging caution with this process might not be what you’d think. Sure, you might figure that there’s no way some guy who gets paid to represent people in License Restorations would ever encourage them to try it themselves, because that’s essentially taking money out of his pocket.
The truth is, I am and always have been a big believer in self-help. I have never made a living doing for others what they can effectively do for themselves. The principal reasons I am not a fan of the Administrative Review process have to do with the high number of unsuccessful Appeals, and the fact that whatever causes a person to lose is yet another obstacle that needs to be overcome in the next Appeal. In a recent Blog article, I discussed the general idea that after a loss, winning an Appeal becomes even more difficult. While not focusing so much on the Administrative Review process, I did point out in that any License Appeal, whatever is filed with the State, or is brought out at the Hearing (win or lose), becomes part of the Record of the case and follows the person through all subsequent proceedings.
This means that the reasons for a Denial in an Administrative Review don’t go away when a person files his or her next Appeal. Let’s look at an example: Say a person loses their Administrative Review because their Substance Abuse Evaluation wasn’t adequately favorable, or was otherwise inconsistent in some regard (a problem which is far more common than you might think, especially for those Substance Abuse Evaluations done by Counselors who do not regularly do them for the Michigan Secretary of State Driver’s Assessment and Appeal Division Hearings).
When a person files for their next Appeal, the first thing the DAAD is going to look at is the order denying that first Appeal, and see if whatever was cited as a reason for that denial has been properly addressed and corrected.
Thus, if within that previously-submitted Substance Abuse Evaluation a person’s “Prognosis” for continued abstinence from alcohol was not good enough, the DAAD is going to want a very clear explanation at the next Appeal about why it has become better. In other words, just submitting a better Evaluation with a more favorable “Prognosis” the next time won’t cut it. One or the other Evaluation is wrong, and one or the other is accurate; a person filing a second Appeal after a loss is going to have to clearly explain this apparent contradiction.
To make matters worse, the person Appealing a second time has to contend with the fact that in the Administrative Review questionnaire, they were asked the following:
20. Do you agree that the substance abuse evaluation about you accurately describes your alcohol/controlled substance use history and your current status? If no, please explain.
As you can see, if you said “yes,” then explaining the difference between an unfavorable first Evaluation and a subsequently favorable one is all more difficult in light of that “yes” answer.
Likewise, if you said “no” in answer to that question, then your Appeal goes down the drain before the starting bell, because if the DAAD cannot find that Evaluation to be accurate and credible, you have failed to prove anything about your case.
And beyond being “stuck” with the shortcomings of a prior Appeal, a person filing for their second Appeal still has to meet the standard of proving their case by “Clear and Convincing Evidence.” Remember, the DAAD is required to decide Appeals under “Rule 13,” which requires the Hearing Officer to Deny the Appeal unless the person filing proves the following issues by “Clear and Convincing Evidence.”
Here is the relevant portion of Rule 13:
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:
(I) That the petitioner’s alcohol or substance abuse problems, if any, are under control and likely to remain under control.
(ii) That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.
(iii) That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act is a low or minimal risk.
(iv) That the petitioner has the ability and motivation to drive safely and within the law.
(v) Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.
Filing a second Appeal is not the time to learn the nuances of this Rule, especially when you have the problems of the first, losing Appeal to overcome.
Beyond all of this, the questions asked on the Questionnaire portion of the Administrative Review application can be a huge problem. Let me explain.
When a person files for a License Appeal due to multiple DUI’s, Michigan law characterizes them as a “Habitual Offender.” This means, in practice, that a person filing a License Restoration Appeal will be presumed to have an alcohol problem. And, as I observed in another prior License Restoration Blog article, I have never seen, nor have I ever even heard of anyone winning a License Appeal by arguing that they don’t have some degree of an alcohol problem. There isn’t any amount of money that would convince me to represent someone before the DAAD who wanted to argue that, despite 2 or more prior DUI’s, they don’t have any kind of drinking problem. That’s a guaranteed loser.
Therefore, in order for me to represent someone in a License Appeal, I need to have my Client be able to testify that they have quit drinking. On my website, I point out that a person can only “quit” drinking once; all previous but unsuccessful attempts can only be characterized as having “stopped” drinking for a while.
Yet the question 15 of the Administrative Review questionnaire asks the following:
15. Describe your current drinking habits and controlled substance use in detail. Include how often you use alcohol and/or use controlled substances, what kind(s) and the amount typically consumed/used per occasion.
So if a person answers that they only drink a beer or glass of wine on special occasions, they have effectively lost not only the Administrative Review, but any subsequent Appeal until they can come back and admit to an alcohol problem, and describe what they’ve done about it and how they’ve made the transition to an alcohol-free lifestyle. For all of that, they can forget about having a License for at least the next several years.
There are, of course, more risks associated with an Administrative Review. The purpose of this article was to point out a few of the more significant concerns I have about the whole Administrative Review process so that the reader may at least get a sense of the risks involved.
Still, there are bound to be plenty of “do-it-you-selfers” out there. Heck, that’s what keeps Home Depot in business. But just like a plumbing job that someone tries on their own and can’t complete, getting a professional involved to finish the job often involves the additional work of undoing the damage done by the person who first tried it on their own.
Are there cases which I think a person can file and win on their own? Sure, but even for those who otherwise meet the criteria of winning a License Appeal, they have to be sure that everything is “just right” with their documentation to prove their case by “Clear and Convincing Evidence.” Given that I will only refer my Clients to 2 or 3 places to get a Substance Abuse Evaluation done (based upon my experience that the vast majority of them are not good enough), there is certainly a significant element of luck involved with an Administrative Review that can be completely eliminated when a qualified License Restoration Attorney handles a License Appeal from start to finish.
Even for those who try it on their own and lose, however, the good news is that you can immediately file for an in-person Appeal and Hearing. If the problems that caused you to lose in the first place aren’t so bad, or of the kind that would otherwise mandate that you wait a while, then things are far from hopeless. The question you need to ask yourself, however, is if it’s worth the gamble.
At the outset of this article, I pointed out that the reader may wonder if my reasons for not being a big fan of the Administrative Review have to do with a potential loss of business. Now, as I’ve (hopefully) shown why that’s not the case, let me let you in on a little secret: Those who file on for an Administrative Review and lose are simply the best and easiest possible Clients to have. When they call, there’s no question on their part that they need and want professional help, and when they come in for their first appointment, to prepare for their Substance Abuse Evaluation (a 2 and-a-half to 3 hour appointment, by the way) they are all ears and ready to follow directions.