Michigan Criminal Defense Lawyer Blog
When you file a Michigan driver’s license restoration or clearance appeal, it will ultimately be a hearing officer from the Michigan Secretary of State’s Administrative Hearing Section (AHS) who decides whether you win or lose. The hearing officer is, therefore, critically important. In this article, the next in my loose series (LS) about the license restoration process, we’ll pick up from the last installment, where we looked at the standard of proof and examined how the evidence submitted in a license appeal case is evaluated, and what level it must reach. Here, we’ll look at the people who evaluate that evidence and determine if it hits the required level. I’ve already written numerous articles for this blog that explore the role of the hearing officers and who they are, so we’ll keep this one short by not repeating too much of what’s already been covered there.
If there’s any kind of starting point to all this, it’s that every hearing officer is unique. Someday, in the future, with the rise of artificial intelligence, it may be a robot doctor that diagnosis and treats your ailment, and a robot mechanic that repairs your self-driving car, and, by that time, robot Judges and hearing officers that evaluate evidence and decide cases. The thing is, when that happens, there will be no individuality in terms of how Judges and hearing officers actually think about things. Until then, the human touch will be part of every license appeal decision, and I firmly believe that’s a good thing. I believe that so strongly that I have NEVER even considered doing a video hearing in any of my cases, although it would be a lot more convenient for me to just travel 5 minutes to the nearest video location, rather than having to drive an hour each way to do it live. I truly believe that it is vitally important that the hearing officer be able to look right into my client’s eyes and read his or her body language during the hearing. That authentic human quality, does, however, come with an unavoidable element of inconsistency (something that will, for better – and probably for worse, as well – be lost in the age of artificial intelligence). Fortunately, because I know these hearing officers very well, I can effectively neutralize that problem because of the consistent and regular experience I have appearing before them.
To be sure, there are certain “core” issues that concern all hearing officers equally, and there is a fairly large group of the same questions that will be asked by, or for each. And if that last sentence is confusing, then the explanation brings us to a key point about the uniqueness of the hearing officers. All of my cases are heard in the Livonia Office of Hearings and Appeals, where there are 5 hearing officers. Within that group, 3 of the 5 want the lawyer to ask all of the questions and essentially “run the show” at the hearing, while the other 2 hold a more traditional, old-school hearing wherein the lawyer sets thing up by asking a few questions, and then kind of steps aside for the hearing officer to ask most of the questions him or herself. Yet even within that rather broad landscape, I need to know what kinds of questions each of the 3 “you do it” hearing officers wants asked, and then make sure to ask them.
This matters a lot. To those lawyers who just “do” license appeals, this isn’t something that affects them almost every day, like it does me. I have to keep the questions of every hearing officer in mind as I work through every single case I handle. For example, if I’m hired for an ignition interlock violation, I have to think of how each of the 5 hearing officers will approach the case. Thus, I may have my client get certain evidence, like letters, so that if the case is assigned to hearing officer “A,” who I know to want that kind of stuff, we’re ready. By contrast, hearing officer “B” may be far more interested in something else, and not any letters, so I better make sure we are ready for that, as well. If any case is started and ultimately put together without considering the entire range of interests and questions of the whole panel of hearing officers, then, to be blunt about it, it’s not being done properly.
A hearing officers is, for every practical purpose, an Administrative Law Judge. They are the deciders of fact and law in license appeal hearings. A hearing officer must be a licensed attorney, of course, but their function is entirely judicial. I understand that some readers may be skeptical if I am only complimentary to them, but the fact is, I appreciate the job the hearing officers do, and my considerable experience in front of them has, if anything, made me a bit less patient with the varying and sometimes contradictory approaches employed by regular Judges at large. Although the hearing officers are individuals in their own right, none of them is so vastly different from any of the others in the way they decide driver’s license restoration, clearance appeal and ignition interlock violation cases. Sure, it’s true that in certain situations, a case that might win in front of one would be more likely to lose in front of another, but those differences are just that -difference, and not inconsistencies. By contrast, and to give you an example of the disparity out there in the court system, within the span of a few recent weeks I handled a 1st offense DUI probation violation in front of one Judge who had sentenced my client to attend AA every day of the week (I wasn’t her lawyer when that happened!) and in front of another, in a 2nd offense DUI case, who accepted my client’s explanation that AA just wasn’t for him, and who agreed that he could use some other kind of support program instead, even if it was online.
The AHS hearing officers are far more consistent. They genuinely try to do the right thing, and the ones I know are all good and decent people. Whatever else, they have a job to do, and rules to follow. Remember, in our last installment from this loose series, we saw how THE rule governing license appeals directs that “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…” This means the hearing officers find themselves having to operate under a negative mandate right from the start. This is a point not known or otherwise overlooked by everyone trying a “do-it-yourself” license appeal, and, truth be told, by the majority of lawyers who take on these cases, and explains why most of them lose. You have to know the rules before anything else
Imaging a game that has a lane, like a bowling lane, where you’d stand at one end with 3 small balls, and down on the other end, there’s a decent sized hole. You’d probably figure the game is about getting as many of the 3 balls into the hole as you can. However, if you were told that the rules require you to get all 3 balls as close to the hole as possible, but without going in, that would certainly change how you’d go about playing, right? No matter how good an arm you might have, you don’t even have a chance if you don’t know the rules of the game…
The hearing officers have to follow these rules and aren’t allowed to make exceptions for anyone who doesn’t know them. As nice as they might be, they are charged with denying the appeal of anyone who cannot prove that he or she has not been drinking for the required amount of time (there is an element of discretion here, but it allows the hearing officer to require more, and not less, abstinence) and is not a risk to drink again. Although they all want proof on some of the same points, there are nuances that are more important to some hearing officers than others, and if you don’t understand what that is going in to the case, much less the hearing, you are at a huge disadvantage.
The hearing officers first get to decide what evidence is allowed to be admitted, and then they get to rule on that evidence Accordingly, an unsigned letter, or a letter without other proper endorsement, no matter how helpful, can be excluded and won’t even be considered. If that’s 1 of your 3 letters, then you’ve just lost your case. However, just because your paperwork was accepted by Lansing doesn’t mean it will admitted by the hearing officer, or, even if it is, that it will be helpful to you. Thus, a substance abuse evaluation that omits a proper diagnosis or prognosis can be admitted, and then used as the basis to deny your appeal. Under the law, hearing officers are given broad discretion in this regard, and their decision will only be reversed by a court if it is found to be, to put it simply, illegal. In other words, a Judge could very well say that he or she disagrees with the hearing officer’s decision, but unless that hearing officer’s action or ruling violates certain legal standards, it cannot be overturned.
The hearing officers are prompt, and hearings start on time. This is very much UNLIKE court, where any number of cases is set for the morning or afternoon call. When you get a notice of a license appeal hearing, it has a specific hour on it, followed by the word “SHARP!” For example, a notice may indicate that your hearing is at 11 a.m. SHARP! Each hearing is set on the hour. The is only 1 hearing every hour for each hearing officer, and virtually none of them will last more than 30 to 35 minutes. A hearing that goes for 45 minutes is a long (and, thankfully, rare) one. There is no “cattle call” of cases at the AHS, so you can count on your hearing starting right on time, and you can count on it being over well before an hour.
If you bring any witnesses, the hearing officer can and will interrogate them. For what it’s worth (not worth, really) I NEVER call witnesses, and stand firm in the belief that calling any witnesses is a first-class amateur mistake. I have written separately about that, so here, I’ll just repeat that it is simple never a good idea to use witnesses. Considering that I guarantee to win every case I take, and that I hold well over 100 hearings a year, I speak with some measure of authority and experience on this point. In the last 10 years, I have called just one witness, and I had no choice because it was an interlock violation with circumstances that were rather unusual. Even so, I won the hearing.
Circling back to the subject at hand, the hearing officer functions very much like a Judge. More than in a courtroom, he or she controls the conduct of the hearing. To fully understand the hearing officers’ role, and what they do, one must first master the rules they have to follow and enforce. From there, you need to know how, as a group, they do that, and then how each does or interprets those rules a little differently from the others. Fortunately, for my clients, I do.
We’ll stop here. Next in this loose series, we’ll look at the actual hearing, and how I prepare my clients for it. For now, if you’re looking to win back your license and you’re genuinely sober, I can help. As I noted in my last article (not part of this “loose series,” or “LS”), for as nice a guy as I am, and for as much information as I share on this blog and on my site, my office stands alone in this field as the best you can hire to get back on the road. If you’re my client, you’re protected by my first time win guarantee. Of course, you should be a good consumer, do your homework, and check around. When you’re ready, you can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST) at 586-465-1980. We’re her to help, and all consultations are free, confidential, and done over the phone, right when you call.