Michigan Criminal Defense Lawyer Blog
In an earlier article, I outlined why filing an Appeal in a Circuit Court after losing a License Restoration Appeal with the DAAD is generally a losing proposition. As a Driver’s License Restoration Lawyer, I receive lots of emails from folks who think they’ve been wrongfully denied and inquire about using my services to file an Appeal. The purpose of this article is to reiterate that, generally speaking, once a person has taken their shot with the Secretary of State and lost, they’ll probably just have to wait the year before they can go back and try again.
I’ve said this in several articles: I’m in business to make money, not send willing Clients away. So far, in 2010, I have a 100% success rate in my License Restoration Appeals, and have, for years, maintained a win rate well over 90%. I’m not looking to pick up a few bucks at the expense of my record and reputation. Therefore, when I tell someone they would likely be wasting their money to file an Appeal of a DAAD loss, I really mean it.
Those who have tried on their own and lost make the best Clients because they know they need help with this process. The truth is that almost all of the reasons a person loses an Appeal that they file on their own are for things that would have been avoided if they wouldn’t have tried to save a few bucks and go the “do it yourself” route.
The problem lies in the fact that most people who file for a License Restoration Appeal before the DAAD really have quit drinking, and truly are committed to remaining abstinent. While those are necessary pre-conditions to an Appeal, standing alone, they fall FAR short of what it takes to win back your License. Remember, under the Law, (specifically, Rule 13), the DAAD Hearing Office is directed to “Deny an Appeal, unless the Petitioner proves [their case] by clear and convincing evidence….” In other words, it’s not the case that the Hearing Officer sits and determines if the person has merely “tipped the scales” in their favor. That’s not nearly enough to win.
In baseball terms, “tipping the scales” could be equated to getting a walk, or a single.
This “Clear and Convincing Evidence” standard is more like hitting a triple, or a home run.
So the do-it-your-selfer, or the person who hires a Lawyer who is not a full-blown License Restoration Lawyer goes in, takes their best shot, and loses. Angry because they feel like they got “screwed,” they then wonder about appealing that decision to Circuit Court.
That’s when I get the e-mail asking about filing an “Appeal” of a lost License Restoration Appeal, in Circuit Court. And in virtually every case, I have no good news to offer.
I don’t do Circuit Court Appeals. From a purely statistical point of view, they’re overwhelmingly losers. I think they should be the picture next to the very definition of throwing good money after bad, at least in most cases.
Another misunderstood fact is exactly what an Appeal to Circuit Court is. The short version is that the Circuit Judge cannot review the case, and merely find that he or she would have issued a License if they had originally decided the Appeal. Instead, the Judge must find a serious legal error in the Hearing Officer’s decision. Even if a Judge feels strongly that he or she would have granted the License had they heard the original Appeal, they cannot overturn the Hearing Officer’s decision without finding a serious legal error that wrongly affected the outcome of the case.
That kind of serious error is called “prejudicial error.” It means that the error caused a “prejudice” to the case, and the decision will not stand.
A prejudicial error is different from what’s called “harmless error” which means an error that, even it had not been made, would not have affected the outcome of the case.
A Circuit Court Judge hearing an appeal of a License Restoration Appeal that has lost must find prejudicial error in order to reverse the Secretary of State. If I had a nickel for every time that DOES NOT HAPPEN, I’d be rich.
Worse yet, in Circuit Court Appeals, the person is stuck with the Record of their initial Appeal. This means that they cannot amend, correct, or fix any of the documents, letters, or testimony that was part of the first Appeal. While I have little inclination to undertake an almost impossibly difficult endeavor in the first place, I have even less to do it saddled with someone else’s mistakes. If I had handled the original Appeal, none of those mistakes which cause the loss would have occurred. In a Circuit Court Appeal, all those mistakes remain. To take the baseball analogy one step further, image trying to hit a home run with a yardstick while a Major League Pitcher is throwing ping-pong balls at you. Yeah, it’s that hard.
Add to that the fact that the Hearing Officers spend all day, everyday, dealing with the Law in License Restorations. They know this stuff better than anyone. Not many Judges, in truth, can claim a knowledge of Repeat Offender License Law anywhere near that of a Hearing Officer, especially because when the Repeat Offender Laws were passed in 1998, all Licensing action was taken completely away from the Courts and transferred exclusively to the Secretary of State.
If there is a sort of “exception” to my disinterest in Appealing a loss from the DAAD, it rests with those cases, often out-of-state cases, where a person has filed for an “Administrative Review” and instead of a Hearing has had their case decided on documents alone. While the majority of those losses don’t present themselves as good candidates for an Appeal either, certainly more of them do than those cases which have gone to Hearing and lost. Moreover, the kind of “Appeal” in Administrative Reviews” is different. Instead of going to Court, a person can, within the time-frame required, re-submit documents and go for a Live Hearing before the DAAD.
Now, when I say “exception,” I really mean “exception.” Think less than 10%. Still, from my point of view, the chances of pursuing and winning an Appeal in Court are so slim, I don’t even waste my time looking at them. At least there’s a chance, even if it’s a snowball’s chance in you-know-where, when someone has submitted for an Administrative Review and lost.
The larger point here is that in the vast majority of all cases presented to me where someone has filed an Appeal and lost, my advice is to wait. Normally, I’ll tell the person that they should contact me about 4 months before their 1-year is up, and I’ll also, based upon the reasons they lost in the first place, have some suggestions about what they should be doing over the next 12 months.
Of course, if you’re reading this and you have a recent loss you’re dealing with, this is cold comfort. If you haven’t yet filed, then think carefully about navigating this on your own. And if you already have a Lawyer, just make sure he or she is a real, bona-fide License Restoration Attorney, and not someone who just “does those.” Whatever else, there is no real money “saved” if a person files an Appeal and loses.