Michigan Criminal Defense Lawyer Blog
There are several things you must prove in order to win a Michigan driver’s license restoration appeal, yet every bit as important that what you have prove is exactly how you have to prove it. In this article, I want to look at a subject that is absolutely critical, although largely ignored, in terms of winning back your driver’s license: The legal standard of proof. Within both the driver’s license restoration section of my website, and in the various license restoration articles on this blog I have simplified and explained the appeal process in detail. Here, we’ll look away from the process and instead examine the standard of proof required to win a license restoration case. This facet of driver’s license reinstatements is easy to overlook, but it plays an absolutely central role in every win – and every loss.
To win back a driver’s license that has been revoked for multiple DUI’s, you need to prove a few things. It begins with the presumption that you have an alcohol problem. If you’ve lost your license for multiple DUI’s whether you had 8, 4, or just 2, it is assumed, by operation of law, that your relationship to alcohol is problematic. The Michigan Secretary of State, through its Administrative Hearing Section (AHS, or what was formerly known as the DAAD or DLAD), will not even consider putting you back on the road until you demonstrate that you have lived and will continue to live a life free of alcohol. Legally speaking, this all boils down into 2 main issues: First, that your alcohol problem is “under control,” and second (and more important), that your alcohol problem is “likely to remain under control.”
By law, in order to win a license appeal, you must prove your case by what is called “clear and convincing evidence.” This means, then, that “clear and convincing evidence” is the legal standard your evidence must meet. Your evidence is the proof (i.e., documents and testimony) you offer on the 2 main legal issues to be decided. That’s simple enough, but what does it mean? Ask 3 lawyers to explain “clear and convincing evidence,” and you are likely to get 3 very different explanations. For all there is to this (and there is enough to write a book), we need to focus on what “clear and convincing evidence” means to the hearing officer who will decide your license appeal. In other words, what really matters is making sure your proof is “clear and convincing” to the person who will rule on your case. Let’s unwind this a bit…
“Clear and convincing evidence” is a legal standard that is not used very often in court. Everyone knows that in a criminal case, like a DUI, the prosecutor must prove someone’s guilt “beyond a reasonable doubt.” This means proof of guilt has to be beyond any reasonable question. If you sue someone for civil damages, like if you’re injured in a car accident, for example, you have to prove that he or she is liable to you by what is called a “preponderance of the evidence.” In that setting, you must simply show that it is more likely than not the other person caused your injuries. We sometimes characterize this by saying you need to “tip the scales.” Courts are busy deciding civil and criminal cases, so Judges spend all day deciding things by either a “preponderance of the evidence” or “proof beyond a reasonable doubt” standard. Some Judges may never have to examine an issue using the “clear and convincing evidence” standard in the course of a whole career on the bench.
In large part, this is because “clear and convincing evidence” is the legal standard used mostly in administrative proceedings, which include things like social security disability cases, unemployment compensation cases, and driver’s license restoration cases. In social security and unemployment cases, the person making the decision is called an “administrative law Judge.” Although there is essentially no difference in duties or powers, the person who decides a license appeal is called a “hearing officer.” I have always considered the hearing officers to be administrative law Judges by a different title. The fact that they don’t have the word “Judge” in their titles is undoubtedly related to some scheme to save money, because it is precisely their judgment on these cases that is what they get paid for, and is the whole point of our present inquiry.
Okay, so far we’ve established that you have to prove to the hearing officer, by what is called “clear and convincing evidence,” that your alcohol problem is both “under control,” and that it is “likely to remain under control.” I’ve said that the more important issue is that your alcohol problem is “likely to remain under control,” but what does that really mean. If you don’t have a firm grasp on what an issue means, then how are you going to have a clue if your evidence on that score is clear and convincing?
Proving that you’re alcohol problem is “likely to remain under control” is really the “meat and potatoes” of a license appeal, and translates into showing that you are a safe bet to never drink again. The state figures that since you and alcohol don’t mix very safely (as shown by your accumulation of 2 or more DUI’s), the only way to even consider letting someone back behind the wheel is to insure that alcohol has been entirely removed from the equation. To be clear, this means that the state doesn’t want to have to worry about drinking and driving because it is confident that you’ll never drink again in the first place, and therefore be no risk to ever drink and drive again. To put it another way, you have to prove sobriety. You have to demonstrate that you have the commitment and the tools to remain alcohol free – forever.
In the context of a license appeal, “clear and convincing evidence” turns out to mean a lot what it sounds like: Your evidence has to be clear, and it has to be convincing. “Clear” means that there are no unanswered questions about it. If I had to reduce this whole subject to one simple description, this would be it: Your evidence must leave no unanswered questions. Let’s look at an example of what falls short of the “clear and convincing standard” in the world of license restoration appeals, because this is actually more helpful than an example of what, in fact, does make the grade. I need to do a little set up, first.
When you win your license, and if you live in Michigan, you will spend the first year driving on a restricted license with an ignition interlock unit in your car. After a year, you can petition the state for restoration of full, unrestricted driving privileges. This second go-around requires filing all the same (albeit updated) documents as your first appeal, along with your ignition interlock final report. This report details any problems you may have had with your unit over the course of the previous year. This means that any positive-for-alcohol test results will show up, including those that are “false-positives” and do not result from the ingestion of alcoholic beverages. A common problem in this regard is called a start up failure, and it occurs when a person goes to start his or her car and the breath sample provided is above .025. This can get rather complicated, but to stick with our example, assume Dan the driver is leaving for work one morning and he goes to his car and his interlock shows his breath reading to be .041. There is a protocol to what Dan should do, and this includes promptly getting to a police station and getting a PBT test proving his breath sample is clean (.000), but say Dan is in a hurry, and he waits 3 minutes, rinses his mouth with water (as he’s supposed to do) tries again, and his car starts with a completely clean, triple-zero reading. Instead of going to the Police station, Dan goes about his day and all seems fine. Assume that this same thing happens 2 more times over the course of his year on the interlock.
Dan has never formally violated the terms of his restricted license, so he may not even think about this until he is sitting in front of the hearing officer for his full license appeal. Now, going through his interlock report (any non-compliance incidents are listed on pages called “event logs”), the hearing officer asks Dan what happened on these 3 mornings. He explains that he’s not sure, that perhaps the positive tests were from his usual morning bagel and that he didn’t wait long enough from eating before starting his car (you are instructed to wait at least 15 minutes after eating before blowing into the machine), and that he called the interlock company when it first happened, and he was told not to worry about it. The hearing officer raises her eyebrows and says, “They’re the ones who gave you the restricted license? (I have actually heard a hearing officer say this) and then asks why he didn’t get a PBT from the police station for the positive test results. Dan explains that since the unit cleared out and showed a clean result a few minutes later, and that, moreover, because the interlock people told him not to worry about it, he thought he was okay.
The hearing officer shakes her head and asks how she can know that it was really Dan who provided the clean breath test a few minutes later. Dan is confused, so the hearing officer explains (this, too, has actually happened) that a person was testifying before her and admitted that the first positive breath test was his because he had been drinking the night before, and on those occasions, he called his wife out to blow into his car and take it for the day. In other words, the guy testified that his wife provided all the clean breath samples. Dan offers that he never even thought of something like that, much less did it.
Ultimately, the hearing officer decides that although Dan shouldn’t lose his license altogether, she will deny his appeal for full restoration, and keep him on the restricted license with the interlock for the next year, instead. She notes that his explanation of the clean samples given after each positive sample did not meet the “clear and convincing” standard because she has an unanswered question about who actually thereafter blew into his unit on those 3 occasions. It’s not that she thinks he’s lying, but neither is his testimony, without supporting PBT results, particularly clear or convincing, especially when anyone in his situation should have gone to the police station, and in light of the reality that most people do just that.
Sounds harsh, right? Well, that’s “clear and convincing” in action. If you’re not ready to wrestle with this, then you’re not ready to take on a license appeal. Fortunately, I work with this standard everyday, so it’s not any kind of problem for me. Even so, I have to admit that over my many years, I learned the most about “clear and convincing” by finding out the hard way what it is not, rather than what it is. Because I know this so well, when I accept a license appeal, I provide a guarantee that I will win it, so anyone who becomes my client does not have to worry about his or her evidence making the grade; it will, guaranteed. If there is a simple, single takeaway from this article, it is that “clear and convincing evidence” is proof that, upon consideration, leaves no unanswered questions.