As of the writing of this article, a new law is sitting on the Governor’s desk that will expand what a circuit court can do when someone appeals to circuit court after losing a driver’s license restoration case. Procedurally, you first try to win back your license by going through the license reinstatement hearing process wherein the Michigan Secretary of State’s Administrative Hearing Office (AHS) assigns a hearing officer who ultimately decides your case. In this article, We’ll briefly look at the change in the law, but then shift back to why, in the vast majority of cases, “appealing” to court after losing at the AHS is a waste of time and money. In my practice, I guarantee to win every case I take, so this new law has almost no potential impact on me or my clients, but there will no doubt be some curiosity, and, inevitably, quite a bit of confusion about it, so perhaps we can head off some of that misunderstanding.
To begin, there are a few things we need to get straight: First, to win a license restoration case, you need to prove things by what’s called “clear and convincing evidence.” The one-line short version of what that means is that after you submit your evidence and/or hold your hearing, you cannot leave the hearing officer with any unanswered questions (your evidence must be “clear”) and that evidence must show you have been alcohol free for a while, and that you are a safe bet (meaning “convincing”) to never drink again. The hearing officer is the person who decides if you’ve done that satisfactorily or not (that decision is the exercise of his or her discretion). Here’s the really important part: If a hearing officer denies a license restoration case and the person files an appeal in the circuit court, this does not make for any kind of new hearing, and no new evidence can be submitted. Instead, the Judge reviews the record (meaning he or she looks at all the evidence the hearing officer examined) and has to conclude whether or not the hearing officer’s decision was what is called “an abuse of discretion.” To put it another way, the Judge does NOT decide if he or she agrees with the hearing officer’s decision, but rather whether or not that decision is within the law. The legal standard for this kind of appeal is whether or not the decision is supported by material and competent evidence.
This means that a Judge can completely disagree with the hearing officer’s findings, but also not find any abuse of discretion or anything illegal about them, and therefore be unable to reverse them. Imagine Arnold Schwarzenneger and Hillary Clinton both run for President. In the first scenario, suppose Arnold wins, and the Judge loves him and even voted for him. However, when the Judge confirms that Arnold was born in Austria and NOT the United States, and that his election is therefore illegal, he must overturn the decision, even though he or she doesn’t want to do so. In the second scenario, assume Hillary wins, and a lot of people are upset about it, so they appeal the result in court. Even if the Judge doesn’t like Hillary and feels that she is the last person on earth who should get the job, unless he or she finds something illegal about her election, nothing can be done to undo it. This is the same thing that applies if someone tries to appeal a lost license restoration case. So what does the change in the law really do for someone who has lost a license case?
To be clear, as the law stands now, if someone appeals a denial of his or her license restoration case and actually wins in court, the Judge only has 2 choices: First the he or she can reverse the Secretary of State, but in doing so, the Judge must, and can ONLY grant full, unrestricted driving privileges. Remember, when a Michigan resident wins a license appeal, he or she wins a restricted license that requires him or her to drive with an ignition interlock for the first year. Under the current law, a Judge cannot order this; for some unknown reason, the law only allows the Judge to grant a full, unrestricted license. The other option a Judge has is to “remand,” or send the case back to the Secretary of State for a new hearing. In those few cases that actually do “win” on appeal, this is almost always the outcome. The new law gives a Judge the power to order a restricted license instead of being stuck with the kind of “all or nothing” choice that currently exists. This is clearly a wise change (this intelligent bill was sponsored by the excellent and practical Rep. Peter Lucido), but given that the Judge must still find the hearing officer’s decision to essentially be illegal before reversing it, there won’t likely be a flood of restricted licenses being ordered on appeal. Yet there is a practical consideration here that may transcend all the legal theory involved.
I often point out, when talking about drunk driving charges, that in terms of challenging the evidence and trying to beat a DUI case, there is no Judge who will just toss everything out of court unless he or she really has no other choice. There are real world practical and political considerations involved, and you can be sure that if there is a way to NOT dismiss a DUI case, every Judge alive will pick that option, every time, over just dismissing a drunk driving case outright. In kind of the same way, when a Judge is faced with license restoration decision he or she finds borderline, the idea of skipping the whole restricted license and interlock for a year and just putting a person with multiple DUI’s back on the road without any kind of supervision doesn’t seem very appealing. This is why so many appeals wind up in remands back to the Secretary of State. It’s a real pass-the-buck, politically safe option. Under the new law, a Judge will be able to kind of “split the difference.” Even so, given the fact that I win almost every case I take the first time (and guarantee it), I don’t expect the new law to change anything for me or my clients.
Here’s why I don’t think the new law is going to change things that much: A lot of people come to hire me after they’ve previously tried and lost a license appeal before, either on their own, without a lawyer, or having used some lawyer who said he or she “does” these rather specialized cases. This means that I read denial orders almost every day. In fact, it has become the norm for me, when meeting with someone who has lost before, to look over his or her case evidence before I read the order of denial and point out what the hearing officer probably said about it. Sometimes, people look at me as if I’m clairvoyant, but I simply point out to them that the reason they’re in my office in the first place is that I (presumably) know this stuff rather well. That’s no reason to be impressed by my analysis; I’m just pointing out the obvious. Instead, if they or their previous lawyer would have known these things, they wouldn’t have lost to begin with. In other words, I’m not doing anything other than getting it right, and that’s what you’re paying for, isn’t it? When you put water into a drinking glass, you don’t expect it to leak do you? No one should be impressed by a glass that doesn’t leak, but should instead avoid one that does…
Anyway, the point is that I see losing opinions all the time, and seldom do I see one where the hearing officer got it all wrong. Sure, I see plenty of cases that could have, and even should have, gone differently, but that’s why it’s important to understand the legal basis for an appeal to circuit court. Not agreeing with the outcome is NOT a legal reason to reverse it. A good example of that occurs when someone has won his or her license back before, then lost it again after another DUI. Sometimes, it comes to light that the person, in the prior appeal where they originally won their license back, gave a sobriety date that wasn’t correct. The hearing officer in the new case may very well conclude that a person is NOT credible who has previously testified under oath to that he or she had quit drinking on a certain date, only to go out and drink and drive and get caught thereafter. Similarly, the hearing officer may state that he or she cannot find such a person to be a low risk to drink and drive again, and therefore deny the appeal. Perhaps the Judge considering the appeal finds the person to have been very believable this last time, and is persuaded that the person really does “get it” now. That, however, is not enough. The Judge cannot substitute his or her judgment for the hearing officer’s judgment, but can only reverse the decision upon a finding that the hearing officer abused his or her discretion or otherwise illegally denied the appeal. This is why, if I take a case like this, I explain to my client that we may have to “take one for the team” and come back again just because the state is “pissed.” To be blunt here, the SOS is kind of like, “Screw us? Sure, you screwed us once; now it’s our turn: Screw you! Okay, now we’re even; see you next year…” Even when I take these kinds of cases, my guarantee still applies, so at least the client knows he or she is only paying me once to eventually get back on the road.
As I noted, at least in theory, the new law should not change things very much. The overall percentage of those cases where a Judge finds the hearing officer’s decision to lack support by material and competent evidence will not be affected by the ability to give a restricted license rather than being limited to sending the case back or granting full, unrestricted driving privileges. In practice, it is possible that some Judges may be a bit more flexible in those cases that are close calls, but since I almost never have any cases to appeal, the new law means little to me.
Of course, the way to avoid all this appeal stuff is to do your case right the first time. You have to be sober, as in genuinely sober, before I’ll get involved. Your lawyer has to understand all the rules, written and unwritten, as well as how they are interpreted and applied, and I certainly do. In almost every single case I take where someone has lost before on their own, or with some other lawyer, I can see rather clearly why their case was doomed before it even started. There was nothing to appeal in those situations, and nothing to do except wait for next year’s eligibility, which is why they’re coming to me. If you do this right the first time, you don’t have to worry about appealing to court, and if you didn’t do it right, you’re wasting your money, in most cases, if you try and appeal your loss. I have appealed only 2 cases in the last several years – and won both times – but those were exceptional matters.
Whatever else, if you’re genuinely sober, I’ll win your license back, and my first time win guarantee means that we won’t have to talk or worry about appeals and “what ifs” and whatnot. We avoid all that by winning. For those people who didn’t hire me, or, for whatever other reason(s) simply lost, the new law at least offers a glimmer of hope, and correctly expands the range of options the Judge has (and should have always had). When you’re ready to talk about getting back on the road and winning your license back, call my office. We’re here to help, and can be reached at 586-465-1980, Monday through Friday, from 8:30 a.m. until 5:00 p.m.