Michigan Criminal Defense Lawyer Blog
Of all the articles I have written about Driver’s License Restoration, I have yet to really describe what happens at the actual License Appeal Hearing. This article will examine what goes on behind the closed doors of the Hearing Room.
First off, it should be pointed out that the main reason this subject is finally coming up in the 78th Restoration article I have written is because almost all of what is so important about these Appeals happens before the Hearing itself. It may sound clichéd, but these cases are won in the preparation. And while preparation alone can’t win a License Appeal, a case cannot be salvaged if absolutely all of the evidence submitted is not up to the mark. In other words, nothing that happens at the Hearing can fix a fatal flaw in the evidence previously submitted, meaning the Substance Abuse Evaluation and the Letters of Support.
The Hearing is more of an opportunity to confirm that the person portrayed in the evidence submitted is as good in real life as they seem on paper. As I tell my Clients beforehand, our preparation has been flawless, so if you can simply go in, and be that person, you’ll win.
Yet for all of the preparation one can put into a License Appeal, the idea that “this is it” really hits home once the door of the Hearing Room has been closed.
I have all my cases Heard in the Livonia Office of the DAAD. This office is the default location for all Metro-Detroit residents, but as an Attorney, I can request that any Hearing, no matter where the Client is from, be scheduled there.
Hearings are set for every hour, from 9 to 11 am, and 1 to 4 pm. The Notice sent by mail will indicate the Hearing time, followed by the word “sharp.” This means that a Hearing set for 10 am will be Noticed up at “10 am Sharp.” There are no Hearings scheduled on the half-hour.
The Hearings do not last for more than the allotted hour, and often last far less than that. I often try to put my Clients at ease, as we prepare for their upcoming Hearing, by telling them that our time preparing will far exceed the time we actually spend in the Hearing.
At the DAAD Hearing Office, there is a window at which the Client and the Lawyer check in. If one arrives before the other, each will check in separately.
At the appointed time, the Hearing Officer will appear at the door to the Offices in the back, call out the case name, and escort the Client and the Lawyer to his or her Hearing Room.
The Hearing Room itself is kind of “quasi-judicial,” in that there is a single, long table with 4 chairs at which the Client and Lawyer sit, and the Hearing Officer sits behind a “bench,” clearly designed to establish their position as the person officiating the proceedings. Hearing Officers are technically called “Administrative Law Examiners,” and are Attorneys, licensed by the State Bar of Michigan.
Once everyone has been seated, the Hearing Officer will announce that, by law he or she is required to record the proceedings, and will then hit the “record” button on the recorder situated on their desk.
Next, the Hearing Officer will begin the Hearing by announcing the case name, date, time, and location in this manner:
“We are on the Record in the case of John Joseph Doe, Case number 1234567. My name is Hearing Officer Jane Doe, and it is 10 am on Tuesday, February 14, 2012, and this Hearing is taking place in the Livonia Hearing Office. Can I have each party identify themselves for the Record, and include your complete address…”
Next the Client, technically called the Petitioner, is told to raise their right hand to be sworn, and they are, in fact sworn to give truthful testimony.
At this point, the Lawyer is given the opportunity to make what’s called an “opening statement,” before the Client is asked any questions. I always have such a statement, because I want to direct the Hearing Officer’s attention to those things that I intend to, or otherwise know will come up during the Hearing and that I feel are strong points which tend to prove the 2 main issues in and License Appeal: That the person’s alcohol problem is under control, and the person’s alcohol problem is likely to remain under control.
After the opening statement, I have the opportunity to question, or examine, my Client.
A this point, I will have prepared my Client for the questions I’ll be asking. As I explain to the Client, I have the advantage of being able to lob softball questions to them, as much to ease them into the Hearing and help them relax, as anything else. Typically, I’ll ask if they are clear about the nature and purpose of the Hearing, and then I’ll ask them, in some way, to describe their relationship to alcohol, both past and present.
After that, and since I know that every Hearing Officer has a list of questions he or she will be asking, I indicate that I have no further questions at that time, and let the Hearing Officer begin.
Because I know each of the Hearing Officers in Livonia quite well, I know what kinds of questions each will ask. And while it’s manageable for me to have a handle on that, it would take way too many pages for me to even begin to list the different questions that will arise in the course of any given Hearing.
There are really 2 components to this. First, it must be borne in mind that every Hearing Officer is unique, and his or her own areas of concern. Second, each one of those Hearing Officers has a different approach and set of questions, depending on the kind of case before them.
For example, if a person regularly attends AA, then the kinds of questions they’ll be asked will be different than those asked of someone who did to some AA meetings, but no longer goes. Yet a different inquiry can be expected of someone who never went to AA.
My job at this point in the Hearing is to watch my Client’s back. If I think their answer to a question was not complete enough, or may have created the wrong impression, I make a note of that. If I hear them say something that I think was very good, I make a note of that. Sometimes, I write down a sentence or two word for word, because I think it was very persuasive. I tell my Clients not to worry too much, and to just answer as they see fit. If there is anything that didn’t come out right, I’ll have a chance to go back and re-question them after the Hearing Officer has finished with his or her questions.
It is not uncommon for someone to be nervous about their Hearing. There’s a lot riding on the outcome, so anyone knows, going in, that it’s important to do well. For better or worse, most people tend to calm down quite a bit as the Hearing progresses, because they get caught up in answering all the questions being asked. Within the first 10 minutes of any Hearing, the typical Client will have spoken more than they did in all their DUI cases combined. With each question, most people, at least, tend to become more relaxed and focused on what’s actually happening, rather than feeling blinded by fear.
Once the Hearing Officer is done with his or her questions, they’ll say “I have nothing further at this point. Counsel?” This is my cue to either ask any follow up questions, or to make a closing statement.
If I think that there’s anything my Client said that needs further clarification, or perhaps bears examining further, I’ll ask them about it. When I am satisfied that all the issues have been properly addressed, I’ll conclude my re-examination.
The Hearing Officer will then ask if we have any witnesses. In another article, I explained why I absolutely DO NOT bring in live witnesses. I haven’t done that in years, and, having won 177 of the last 179 Hearings over the course of the preceding 25 or 26 months, my strategy is a proven winner. To put it another way: In the year 2010, I won 100% of the cases I handled, and since about May of 2009, I have won 177 of the last 179 cases I’ve taken. That’s an overall win rate of better than 98.8%, and I back up my claims by guaranteeing that if I don’t win the first time, the next Appeal is free.
The closing statement comes next. To me, this is extremely important. Without trying to brown-nose anyone, I must say that each of the Hearing Officers in Livonia will listen intently to my closing statement, and make eye contact throughout. They do not look down at their papers and start filling stuff out while only pretending to listen.
The closing statement is an opportunity to connect up what I noted in my opening statement with what was brought out during the hearing. Years ago, a teacher of mine once described good writing this way, and the same can be said for persuasive speaking: “You tell them what you’re going to be telling them, then you tell them, then you tell them that you told them.” This is rather persuasive when the Client’s testimony does prove what the Lawyer said it was going to prove.
Beyond that, I will draw out a few points made by my Client during their testimony. Here’s a good example:
Most people tend to claim a Sobriety date of the date of their last DUI Arrest. Once in a while, that’s not the case, and when a Client testifies that even after that last DUI, they continued to drink, and didn’t “get” or understand the need to quit forever until sometime later.
When that happens, I will point out the Hearing Officer that such an admission is evidence of my Client’s truthfulness, which is in turn evidence of those character changes that tend to become important as a person gets sober. I’ll point out that there would be no way disprove that the Client did not drink as of the date of that last DUI Arrest, but the Client, in the spirit of Recovery, didn’t take that easy road and instead chose to be truthful. This ties in with the whole Recovery notion that a person cannot begin to really be honest with others until they start being honest with themselves.
Often, I will recite that entire sentence or two I wrote down as the Client testified because I believe that statement is helpful, and bears repeating.
Once the closing statement has been made, the Hearing Officer will ask if there is anything further, and then explain that they’ll be taking the Appeal under advisement, and will issue a written Ruling in the coming weeks, and that Order will either explain what to do if a License has been granted, or why the Appeal was denied.
Thereafter, the Hearing Officer will formally close the Hearing by announcing the time, that the Hearing is concluded, and will then disengage the “record” button on their Recorder. They will then say aloud “we’re off the record.”
That’s how it goes. Saying that, though, is a lot like a surgeon describing a heart transplant by saying “It was relatively simple. I took out the old heart, put in the new one, hooked it up, and then we were done!”
If there is one point to reiterate, it is that, in truth, the time I spend preparing the Client for the Hearing will far exceed the actual time we spend in the Hearing itself. It cannot be overstated that winning is in the preparation.
Once the Hearing has concluded, I usually walk outside of the Office with the Client and do a little “post-game wrap up.” Often, the Client will wonder if they did okay, or apologize for being nervous, and I’ll reassure them that they did just fine. As long as they didn’t go in and paint a picture different than that portrayed in the Substance Abuse Evaluation and Letters of Support, we’ll just be waiting to find out that we won. With that and a handshake, we go our separate ways.
For all the Hearings I have done, I approach each and every one with the sense of importance it deserves. My Clients have gone through a lot, and having done the work to achieve and maintain sobriety, they don’t deserve to be let down at this critical moment in their lives. I take these matters seriously, and I am generously rewarded by the gratitude of my Client for helping them put in place what is often the last outstanding piece of the puzzle of their re-built lives. It feels good to help someone who has worked for, and deserves something, to actually get it.