Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began our examination of Rule 13, the rule governing License Appeals. We began with the premise that the first 3 issues of Rule 13 actually all fold into the first issue. We then examined how the second issue in fact does just that, and how and why, after proving the first issue, number 2 can be considered already proven, or moot.
In this second part, we’ll pick up by showing how the third issue, like the second, actually “folds” into the first, and how, just as with that second issue, once a person has proven the first, the third can be considered to have been proven, as well.
To put it another way, there really aren’t 3 issues here, there is only 1, kind of stated in 3 different ways. This transforms this seemingly complex Rule into something rather easy to understand
Remember, what we’re talking about in terms of the first issue has been boiled down to essentially mean that a person must show that they’re alcohol problem “is likely to remain under control,” which we then interpreted as meaning that the person is a safe bet to never drink again.
The third issue reads as follows:
(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.
We can simplify this and take it to mean the person is a low to minimal risk to drink and drive again.
We must therefore ask, how is it even possible that person’s alcohol problem has been proven to be “likely to remain under control,” but the person could not likewise be said to be a low to minimal risk to drink and drive again, which is really what issue number 3 (iii) is all about?
And the answer: It is not.
Accordingly, by proving that their alcohol problem is “likely to remain under control,” a person will have likewise and simultaneously proven that they are a low to minimal risk to drink and drive again. Issue number 3 (iii), then folds into the first, just like issue number 2 (ii) folds into the first. In effect, is also redundant.
The real meaning here is that a person can basically skip that stuff, meaning issues number 2 (ii) and 3 (iii). It means that as a License Appeal is being prepared, a person can and should just focus on the issue number 1 (i), and can basically ignore issues number 2 (ii) and 3 (iii). Specifically, it means that the first part of Rule 13, which is written like this:
(1) With respect to an appeal hearing that involves a review of a determination of the department which results in a denial or revocation under section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act, all of the following provisions apply:
(a) 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 to 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
Can and should, instead, be read like this:
(a) 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.
That’s it.
At first glance, the reader might wonder how or why the legislature would have included all that redundant language in the Rule. That’s a fair question.
The precise answer may never be known. However, our recent experience here in Michigan regarding Medical Marijuana proves that some laws are just not written very well. In fact, as the reader no doubt learned in High School government class, the job of the Courts is to “interpret” the Law. This rather presumes that Laws will be unclear enough at their creation to require interpretation.
In this case, we at least can take comfort in the knowledge that the Law (or Rule) isn’t so much poorly written, or in anyway unclear, but instead is just redundant, and tends to say the same thing over and over again (a complaint I am not unfamiliar with from some of my articles, this one being no exception).
At the risk of doing precisely that, we can come away from this discussion knowing that as a person first looks at the seemingly complex language of Rule 13, the real issues present in every License Appeal can be boiled down to this:
A person must show (by clear and convincing evidence) that his or her alcohol problem is under control, and will likely remain under control.
As we have noted, this means that they can fix a Sobriety date, or date of their last drink (which should, at a minimum, be at least a year before any Appeal is even considered), and can talk about how they know they can never drink again, and what they’ve done, and/or are doing, to make that happen.
I would be remiss if I didn’t point out that there is a 3rd issue, which I call the “Seldom Occurring Issue” that can arise in some cases. This issue, which is identified as issue number 4 (iv), is that the person seeking to get their License back “has the ability and motivation to drive safely, and within the Law.”
Of course, I have made a detailed examination of this issue in another article, but for our purposes, we can simply say that it only arises when a person has been caught driving AFTER they have had their License Revoked for multiple DUI’s.
If a person has had their License taken away, but gets caught driving thereafter, the Secretary of State will, not surprisingly, want to know how it can have any confidence that the person will follow any Restrictions that might be placed upon their driving if they win a License Appeal, when their past behavior has shown that they tend to disregard such things. To put it another way, the State will ask why it should believe a person will be inclined to suddenly follow rules when their past behavior shows they don’t.
This issue only arises in a relative minority of cases, and, when it does, it is usually quite easy to handle.
So to get back to saying the same thing over and over again, this means that all License Appeals will require that the person show that their alcohol problem is under control, and that it is likely to remain under control. A few such Appeals will also require that the person show that they will follow any rules or restrictions placed upon their driving, because they have been caught driving after their License was originally Revoked for multiple DUI’s.
It goes without saying that boiling this all down to rather manageable discussion points tends to oversimplify the underlying complexity of a License Appeal. Still, it is worth paring away the unnecessary verbiage of this rule to make it more understandable at the outset. Sure, there’s a lot to this, but it helps no one to waste time trying to figure out what something means when it is redundant, anyway. And by peeling away what is unnecessary, it really helps us cut to the heart of the matter, which is that a person has been alcohol free for a given period of time, and is a safe bet to remain alcohol free for the rest of their life.