To win a Michigan driver’s license restoration or clearance appeal case, a person must prove certain things (more on that later) by what the law specifies as “clear and convincing evidence.” Translated into baseball terms, this means that one’s proofs must be roughly amount to what is the equivalent of hitting a home run. It’s important to understand this, because anyone undertaking a driver’s license appeal without a clear understanding of what kind of evidence is necessary to win will almost certainly wind up losing.
Perhaps the biggest misunderstanding in the driver’s license appeal world is that NEEDING to drive plays any role in the process. It does NOT. As we’ll see, “needing” a license has absolutely nothing to do with being to win it back once it has been revoked for multiple DUI convictions. The law sets out very specific criteria that a person must meet in order to regain driving privileges. The focus of this article will be on that “clear and convincing evidence” legal standard, and what it means in the real world.
We’re going to explore all of this in simple, plain-English simple terms. To really get a handle on all this, though, the reader has to understand a few things first. For most people, a driver’s license appeal only becomes necessary after his or her driving privileges have been revoked for multiple DUI’s. That’s key, because under Michigan law, once a person has been convicted of 2 DUI’s within 7 years, or 3 DUI’s within 10 years, he or she become legally categorized as a “habitual alcohol offender.” As a consequence of that, he or she is also PRESUMED to have some kind of alcohol problem.
Thus, the starting point for every driver’s license restoration or clearance appeal following multiple DUI’s is that the person HAS a drinking problem. This is NOT to say that he or she is any kind of raging alcoholic, but rather that, at a minimum, his or her relationship to alcohol has resulted in multiple DUI convictions, and is risky – at least that measurable extent. Accordingly, the quickest way to lose a license appeal is for someone to try and explain that he or she doesn’t have any kind of drinking problem. Why this is true will become clear as we proceed.
For now, however, the reader simply has to know that this presumption applies to anyone filing a driver’s license appeal. With that as our backdrop, let’s look at the law, and specifically, the key part of the main rule governing license appeals, and then we’ll boil down what it really means.
That main rule is Rule 13, and it provides, in relevant part:
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 or 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.
iv. That the petitioner has the ability and motivation to drive safely and within the law.
v. Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.
Now, let’s break this down even further. Note how the opening sentence mandates that “the hearing officer shall not order that a license be issued….” This is a negative mandate. Put simply, the rule requires the hearing officer to DENY a driver’s license appeal “unless the petitioner proves, by clear and convincing evidence, all of the following….” We’ll get to those issues shortly, but now, let’s look at the whole “clear and convincing evidence” standard.
This is profoundly important. When we think about winning a case, we typically imagine the scales of justice evenly balanced. The idea of “winning” is about how far one party has to tip the scales to his or her side:
In a civil case, where one party sues the other for something like money damages, the winner must prove his or her case by what’s called a “preponderance of the evidence.” This means that he or she must tip the scales, however slightly, in his or her favor. In numeric terms, that translates to anything over half-way, or above 50%. Thus, a person can win with 50.0000001% of the evidence in his or her favor (accordingly, the other side loses because only 49.9999999% of the evidence is in his or her favor).
In a criminal case, the prosecutor must prove a person’s guilt “beyond a reasonable doubt.” That’s the highest standard in the law.
How, then, does “clear and convincing evidence” compare to these?
It would be easy – but wrong – to think of it as basically splitting the difference between a “preponderance of the evidence” and “proof beyond a reasonable doubt.” In fact, “clear and convincing evidence” is much closer to “proof beyond a reasonable doubt.”
In the context of a driver’s license appeal, evidence is considered both clear and convincing when it does NOT leave the hearing officer deciding a case with any unanswered questions, or reasonable concerns. In a very real way, “clear and convincing” is very much what it sounds like. The evidence must be clear, as in NOT confusing or muddled, and it must also be convincing, as in very convincing.
Remember, the legal mandate is that the hearing officer “shall not” grant an appeal unless the person proves his or her case by “clear and convincing evidence.” This essentially means that the hearing officer is expected to say “no” unless the person steps up with his or her proofs and essentially hits what amounts to that home run we mentioned at the outset.
In that way, the language of the rule rather clearly telegraphs the idea that anyone filing a license restoration or clearance case better do a bang-up job. In effect, it instructs the hearing officer should to NOT waste his or her time trying to figure out any case that’s any kind of close call.
In other words, either a person clobbers it, or not.
The rest of the rule stating what a person must prove is rather long, but we can short-circuit all of that and boil it down to 2 critical issues that must be demonstrated in every case:
First, that the person’s alcohol problem (remember, it is presumed) is “under control.” In a license appeal, this means that someone has been COMPLETELY alcohol and drug-free (including from recreational marijuana) for what amounts to a legally sufficient period of time.
Obviously, someone who has 5 or 6 DUI’s will need a longer period of abstinence than someone whose drinking history isn’t that long, and who only has 2 DUI’s. That said, our firm will generally never move forward with an appeal until someone has been clean for at least 18 months.
Second, that the person’s alcohol problem is “likely to remain under control.” Proving this requires showing that one has both the ability and commitment to permanently remain alcohol-free.
At it’s most basic, this means someone has to demonstrate that he or she is a safe bet to remain sober for life.
Those 2 issues are rather straightforward, but what often gets overlooked is that they must be proven by that “clear and convincing evidence standard.”
The hearing officers who decide these cases know, from experience, that people are going to lie to them. They fully expect people to come in and say they’ve quit drinking, even though they may still indulge, even if only once in a while. They expect to hear BS. An important part of their job is to sift through a person’s evidence and see if it’s watertight. For example, they’ll look to see if a person is, in fact, living a sober lifestyle.
Thus, in order to win a license appeal, a person must be strong in his or her sobriety. If the hearing officer suspects that a person even THINKS he or she can ever drink again, it’s game over.
The real goal of the drivers’ license appeal process is to try, to the extent possible, to only return driving privileges to those people who can demonstrate they have honestly quit drinking and won’t ever drink again. The one thing the Secretary of State can count on is that people who don’t drink are exactly zero risk to ever drive drunk again.
That’s the safe bet, and it’s the only one the law allows.
Proving that someone won’t ever drink again requires a lot more than just saying so. It requires showing the kind of sober lifestyle that always underlies real sobriety.
This means, than that merely being sober isn’t enough to win a license appeal case. A person must prove his or her sobriety by providing “clear and convincing evidence.” The hallmarks of real sobriety are always present for those who really have quit drinking and moved on, but they must be proven clearly, and in a way that is “convincing” to the hearing officer.
Not being truly sober, is, of course a complete deal-killer.
My team and I guarantee to win every driver’s license restoration and clearance appeal case we take. For us, that begins by making sure our firm only take cases for people who ARE genuinely sober. As part of our initial consultation, we’ll ask the kinds of questions necessary to make sure someone really has quit drinking and otherwise has what it takes to win.
Ultimately, we need to know that we can put together a winning case that meets the “clear and convincing evidence” standard. That starts with a sober client, but there is a lot of work that goes into making the evidence good enough to actually amount to that required home run and score a win.
If you’re looking for a driver’s license restoration lawyer to win back your license, or to remove a Michigan hold on your driving record so that you can get a license in another state, be a wise consumer and read around. Pay attention to how different lawyers break down the license appeal process, and how they explain their various approaches to it.
This blog is a great place to start. It is fully searchable and updated weekly with new, original content. To-date, I have written and published over 680 articles in the driver’s license restoration section. The reader can find more useful information here than any a everywhere else combined, but don’t take my word for it – see for yourself.
Once you’ve done enough reading, start checking around. You can learn a lot by actually speaking with a live person. Our firm can handle your case no matter where you live, so make sure you give our office a ring as you explore your options.
All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. We’ll even by happy to compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST) at either 248-986-9700, or 586-465-1980.