Winning a Driver’s License Restoration case – The Standard of Proof

For all of the evidence that must submitted and rules that must be followed when filing a Michigan driver’s license appeal, there is also a legal requirement, called the “standard of proof” that controls how every case is decided. This can be a tricky subject, because while almost everyone knows that a criminal case, for example, must be proven “beyond a reasonable doubt,” when you ask anyone what that really means, you’ll soon discover that most people don’t actually know. Similarly, many people know that if you sue someone, you have to prove your case by a “preponderance of the evidence,” but again, when pressed about the matter, you’ll discover that while most people think they know what it means, few really do.

Scalers 1.2.jpgThis article will examine the standard of proof required to win a Michigan driver’s license clearance or restoration case: Clear and convincing evidence. To begin, I should point out that this is probably the least frequently used “standard of proof” in the law and that you’d likely find most lawyers don’t even really understand what it means. We’re going to simplify things here, because a complete treatment of this topic would take a book, not an article, and the reader would not likely learn anymore for all that added effort, anyway.

The standard of proof required to win a Michigan license appeal is set forth by the Michigan Secretary of State in the DAAD rules governing those appeals. The relevant part of the applicable rule (rule 13) begins, “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…” Note how the instruction to the hearing officer is to NOT issue a license unless certain things are proven by “clear and convincing evidence.” This is really a sneak peak at the negative directive to the hearing officer. The wording of the rule would mean much the same thing if we cleaned it up a bit to read something like, “The hearing officer shall issue a license if the petitioner proves the following by clear and convincing evidence,” except it would lose the strong negative (“shall not”) implication. That negative mandate, however, is very important.

In fact, the “shall not” negative mandate effectively sets the bar at the level the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD) requires in order to grant a license restoration or clearance appeal. You can fairly translate this to mean that the hearing officer is instructed to look for a reason or reasons to deny your appeal (if you’ve already tried an appeal and lost, you won’t have much trouble understanding this). So what does all this really mean?

First, and rather obviously, it means that the rule governing license appeals instructs the hearing officer to NOT grant an appeal unless certain specified conditions are met. If you’ve ever heard any whispers about how “tough” license appeals are, this is why. Most people, and I’d venture to say that most lawyers (except those few who, like me, really define themselves as a “driver’s license restoration lawyer“) don’t have a working clue about what “clear and convincing evidence” really means, much less the fact the hearing officer is basically instructed to find a reason to deny an appeal unless everything measures up to the “clear and convincing” standard.

For someone in the real world, this means it’s not good enough to just be sober and show up for a license appeal hearing expecting to be believed. You absolutely must know exactly what kind of evidence to submit as well as a clear understanding of the standard to which that evidence must measure up. If this isn’t crystal clear to you, then you are operating in the dark.

For all the complexity we can find in the term “clear and convincing,” we can also simplify it by looking for a clear meaning, “clear” being the operative word here. Evidence is “clear” when the person considering it understands it, and has no questions about it. If you say something to someone, and he or she has any questions about what you said, or otherwise needs some kind of clarification, then what you’ve presented is not clear, or at least clear enough. This means that the evidence to be presented in a license appeal must not give rise to any questions, particularly any question that you cannot answer. This, by the way, is one reason why I don’t believe in administrative hearings (statistically, 3 out of 4 lose); if the hearing officer reviewing that case needs some clarification on any point, or otherwise has a question, you’re not there to answer it. Accordingly, you lose…

The hearing officer’s unanswered question is why license appeals are denied for a “questionable/insufficient” substance abuse evaluation, in the words frequently used by one hearing officer. If the hearing officer has any question about something in your evaluation, it is not his or her job to call the evaluator and ask for clarification. It is your job (or mine, when I’m the lawyer) to make sure the evaluation and any other evidence we submit is “clear and convincing,” and won’t give rise to any questions. I need to carefully review this evidence before submitting it to make sure the hearing officer won’t be likely to have any questions. If the hearing officer deciding case reviews the evidence (including the testimony presented at the hearing) and is left with any unanswered questions, or in need of some clarification, then you will have failed to prove your case by “clear and convincing” evidence and your appeal will be denied.

To be sure, there are situations where a hearing officer can ask a person questions that clarifies a particular point, but when you get to more technical considerations, particularly with respect to those things that are part of the substance abuse evaluation, if the hearing officer has an important question, and given that the evaluator is not there to answer it, the inability to promptly get an answer, or a clarification on a point means he or she must deny the appeal. Remember, the first job is to provide evidence that doesn’t give rise to questions, meaning evidence that is “clear.” If the hearing officer does have a question, then it better be something that can be answered right then and there. Thus, a question for the evaluator is pretty much guarantees a losing appeal because he or she won’t be there to answer it.

This sounds tough, and it is tough. Remember, though, that to the DAAD, considering re-licensing someone whose license has been revoked for multiple DUI’s and who is considered a habitual offender necessarily means dealing with an already high-risk group of people. The Secretary of State’s job is to only give a license to those people who present as a minimal risk to ever drink again. Accordingly, just like in a high jump, the bar is set really high, and if you don’t clear it, then you’re out. The license restoration process is not meant to be fair or easy, it’s meant to keep anyone who can’t clearly show themselves to be sober and likely to remain alcohol-free for life from ever getting back behind the wheel.

Clear evidence, then, means clear, without need of clarification, and giving rise to no questions. If someone verbally instructs you to go the 2nd store on the 3rd block and buy 3 bananas and 6 strawberries with a 5-dollar bill and give the change to the 4th homeless person you see as you walk back, and you any have any question about exactly what you are supposed to do, then the instructions are not clear. And for what it’s worth, it only matters whether the instructions are clear to the person to whom they are given, just as it only matters that the evidence is clear to the hearing officer deciding your case. Of course, in the example above, it would be far more understandable, meaning clear, if everything was written out in simple detail:

  1. Walk to the 3rd block from here
  2. Go into the 2nd store you see
  3. Pick up 3 bananas and 6 strawberries
  4. Pay for them with a 5-dollar bill
  5. Give the remaining money to the 4th homeless person you see on your return trip.

This is how the evidence should be when your license appeal case is filed; simple, straightforward, and, above all, clear.

By now, you should get the point that clear means just that; clear, without need for any additional clarification. One big problem is that most evaluators don’t exactly know what the DAAD is looking for on the substance abuse evaluation form . Add to that the fact that most lawyers don’t know exactly what the DAAD wants, and you have a recipe for a quick denial. Even if he or she looks it over, the lawyer who doesn’t concentrate in license appeals cannot see the shortcomings of an evaluation that will wind up being the basis for a denial. I don’t have this problem, because I live in the license appeal world.

This same need for clarity applies to every piece of evidence in the case. “Clear” has to be crystal clear.

Before we close, we also need to look at the second part of clear and convincing; convincing. Fortunately, this is easy. “Convincing” must, by definition, be convincing, but as far as an evidentiary standard, there’s not a lot of depth here beyond the obvious. That’s a good thing…

Evidence that is “convincing” must be persuasive. It must tend to convince the person who sees it of something. Thus, if you come home to find that your TV has been stolen, and two of your neighbors saw and took pictures of Hotfingers Harry going into your place and carrying your TV out, such evidence would certainly be “convincing.” If, however, none of your neighbors saw anything, but one of them said “I bet it was Hotfingers Harry. That guy steals everything around here” that’s not even evidence, let alone convincing. The analogy may not be perfect, but the concept of “convincing” is so simple that most people who miss it do so precisely because it’s pretty much what it sounds like.

It is easier to talk about “clear and convincing evidence” than it is to put it all together, but that’s my job as your lawyer. My hope is that the reader at least gains some knowledge of the kind of evidence it takes to win a license appeal. This may help the reader understand, for example, why my first meeting with a new client, which is almost entirely devoted to preparing him or her to undergo a substance abuse evaluation, lasts 3 hours. We need to make sure that your evaluation comes out meeting the “clear and convincing evidence” standard. The same attention to detail must be given to every shred of everything we file and present, but in the end, by doing that, we’ll win your license back. It is precisely this level of attention to the details that allows me to guarantee a win in every case I take.

What could be clearer than that?

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