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Prosecuting Attorneys Association of Michigan Webinar: Circuit Court Review of Driver License Appeals. June 11, 2010 Lansing, Michigan Colleen Tulloch-Brown Administrative Law Examiner Bureau of Regulatory Services Michigan Department of State. Overview. 1. Circuit Court Review

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Prosecuting Attorneys Association of Michigan Webinar: Circuit Court Review ofDriver License Appeals

June 11, 2010

Lansing, Michigan

Colleen Tulloch-Brown

Administrative Law Examiner

Bureau of Regulatory Services

Michigan Department of State

overview
Overview
  • 1. Circuit Court Review
  • 2. Common Problems with Circuit Court Orders
  • 3. Consequences of Drafting Ineffective Orders
  • 4. Choosing the Proper SCAO Form/Drafting Proper Orders
  • 5. Final Service of Orders
mvc states sos shall impose licensing action
MVC states: SOS “Shall” Impose Licensing Action
  • Courts no longer impose license sanctions
    • Exceptions:
  • - Drug crime, no proof of insurance, watercraft, snowmobile, ORV and child support
  • MCL 257.732 requires the Court to forward the

abstract within 5 days after conviction

  • MCL 257.320a requires SOS to post to MDR within 5 days after receipt of abstract
driver assessment da actions
Driver Assessment (DA) Actions
  • Driver Assessment Reexaminations

-Points

-Medical

-Violation of License Restrictions

  • Analyst may:

-Restrict, Suspend or Revoke

  • May Appeal to:

- Driver Assessment and Appeal Division

- Circuit Court

driver assessment and appeal hearings
Driver Assessment and Appeal Hearings
  • License Appeal Hearings

-Appeals from Application Denials

-DA Actions

-Implied Consent

-Revocations

  • Administrative Law Examiner (Hearing Officer) may:

-Uphold, Amend or Deny

  • Decision may be appealed to Circuit Court
venue and time limits
VENUE AND TIME LIMITS
  • Petition for relief from Secretary of State (SOS) determination filed in county of residence
    • Exception: Implied Consent appeals
  • 63/182 day appeal window is jurisdictional
    • Leone v SOS, No. 226282 (2001)
    • Jakobek v SOS, No. 261773 (2006)
may appeal directly to circuit court
May Appeal Directly to Circuit Court
  • MCL 257.323(3)
  • DA Actions
  • Implied Consent Suspension
  • Mandatory Additional Suspension
additional revocations and revoked denied actions
Additional Revocations and Revoked/Denied Actions
  • Prior to 01/01/1992
      • All cases can go directly to Circuit Court
  • After 01/01/1992, before 10/01/1999
      • All additional actions may go to Circuit Court
      • Underlying action may not be appealed to Circuit Court
additional revocations and revoked denied continued
Additional Revocations and Revoked/Denied (continued)

After 10/01/1999

  • Additional suspension may appeal to Circuit Court
  • Circuit Court may not set aside or modify additional revocations imposed under MCL 257.904 for events that occurred after 10/01/1999. - Wilson v SOS, No. 227444 (2000).
  • All revoked/denied must serve minimum 1 or 5 year revocation.
  • Circuit Court cannot remand cases to DAAD prior to the minimum 1 or 5 year period of rev/den imposed under MCL 257.303.
backdating of abstracts
Backdating of Abstracts
  • If a court failed to forward the abstract of conviction to the Department at the time of conviction there may be a delay between the time of conviction and imposition of the license sanction.
  • The Department imposes license sanctions after receipt of an abstract of conviction.
  • When this occurs, neither the Secretary of State nor the Circuit Court has jurisdiction to “backdate” the licensing sanction to the date of conviction.
license suspension
License Suspension
  • A suspension is a temporary loss of the license
  • - Carries “from” and “through” date
  • - After “through” date, reinstatement fee is required for relicensure
implied consent suspension important points
Implied Consent Suspension-Important Points

1st Implied Consent Suspension

  • MCL 257.625f(1)(a) requires a license suspension of one year for a refusal to submit to a chemical test.
  • MCL 257.319b(1) requires suspension of all vehicle group designations.
  • MCL 257.319b(7) specifies that CDL sanction applies for offense in non-commercial vehicle the same as if offense occurred in a commercial vehicle.
  • Reviewable in the Circuit Court in the County of Arrest.
implied consent suspension important points continued
Implied Consent Suspension-Important Points (continued)
  • Review of the section 625f suspension is under MCL 257.323(3)- the Circuit Court may “affirm, modify, or set aside” the action.
  • Review of the section 319b suspension (CDL suspension) is limited under MCL 257.323(4) to a review of the driving record and the Court “shall not” grant restricted driving privileges.
implied consent suspension important points continued14
Implied Consent Suspension-Important Points (continued)
  • 2nd or Subsequent Implied ConsentSuspension
  • MCL 257.625f(1)(a) requires a license suspension of two years for a second or subsequent refusal within 7 years.
  • Review of second section 625f suspension is under MCL 257.323(4) and Court shall not grant restricted driving privileges.
  • State and federal law require lifetime revocation of CDL (MCL 257.319b(1)(e) & 49 CFR 383).
review of the record appeal to circuit court
Review of the Record Appeal to Circuit Court
  • Review of the record under MCL 257.323(4) is a record prepared pursuant to DAAD hearing under MCL 257.322 or MCL 257.625f, or the driving record under MCL 257.204a
  • Review of the record under MCL 257.323(4) can not include witness testimony or additional evidence other than the record created under MCL 257.322 or MCL 257.625f. Rodriquez v SOS, 215 Mich App 481 (1996)
  • Generally requires appeal to DAAD before going to Circuit Court – Exhaustion of administrative remedies
license revocation
License Revocation
  • The most serious action is a revocation
  • MCL 257.52 defines revocation as termination of the driver license and privilege to operate a motor vehicle
  • Eligible to reapply to SOS for restoration:
  • - After 1 year following a first revocation
  • - After 5 years for a subsequent revocation w/in 7 years
  • No guarantee license will be returned
habitual offender revocation denials
Habitual Offender Revocation/Denials
  • Any combination of 2 alcohol or substance related driving convictions, murder, negligent homicide, manslaughter within 7 years
      • Minimum 1 or 5 year revocation
      • Any combination of 3 convictions within 10 years
      • Apply law that was applicable at the time of the arrest (MCL 257.320e) -Arrests prior to 01/01/1992 can go directly to Circuit Court
habitual offender revocation denials continued
Habitual Offender Revocation/Denials (continued)
  • MCL 257.303(4) - The SOS “shall not” issue a license to a habitual offender until all of the following occur:
      • Expiration of 1 or 5 years
      • Rebuts presumption he or she is a habitual violator by clear and convincing evidence
      • Meets requirements of SOS (Promulgated Rules)
habitual offender revocation denials continued19
Habitual Offender Revocation/Denials (continued)
  • MCL 257.303(4)(b) and DAAD General Rule 257.313 both specify the standard of proof at a DAAD hearing is clear & convincing evidence

- Bunce v SOS, 239 Mich App 204 (1999)

1999 mr 9 r 257 313 rule 13
1999 MR 9 R 257.313 (Rule 13)

Petitioner must prove all of the following by clear and convincing evidence:

  • That any alcohol/drug problem is under control and likely to remain under control
  • That the risk of repeating past abusive behavior is a low or minimal risk
  • That the risk of driving impaired or under the influence again is a low or minimal risk
1999 mr 9 r 257 313 rule 13 continued
1999 MR 9 R 257.313 (Rule 13) (continued)
  • That they have the ability and motivation to drive safely and within the law
  • That they meet the minimum period of required abstinence
  • Other relevant showings
rule 13 abstinence requirement
Rule 13 Abstinence Requirement

12 month (or more) period of abstinence required if 1 or more of the following is established:

  • A BAC of 2 or more times the statutory presumption (0.16 or higher); or
  • 3 or more substance abuse convictions; or
  • Any history of use after a period of control; or
  • Diagnosis of alcohol and/or drug dependency; or
  • Prior record of revocation/denial
habitual offender revocation denials hearing officer decision
Habitual Offender Revocation/Denials Hearing Officer Decision
  • If the Hearing Officer is satisfied the petitioner has met all the requirements by clear and convincing evidence driving privileges are granted.
    • Full privileges
    • Restricted privileges
      • MCL 257.322 requires a BAIID – 1 year
mcl 257 322 9 current
MCL 257.322(9) – Current
  • Duration of BAIID-Habitual Offenders:
  • Initial period - 1 year
  • Hearing Officer discretion after first year
  • BAIID ordered by DAAD appears on MDR
  • No Medical Waivers under statute
circuit court review of hearing officer decision
Circuit Court Review of Hearing Officer Decision
  • Review is under MCL 257.323(4). The CC

shall set aside the determination only if the petitioner's substantial rights have been prejudiced because the determination is any of the following:

    • In violation of the Constitution of the United States, the state constitution of 1963, or a statute.
    • In excess of the secretary of state's statutory authority or jurisdiction.
    • Made upon unlawful procedure resulting in material prejudice to the petitioner.
    • Not supported by competent, material, and substantial evidence on the whole record
    • Arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.
    • Affected by other substantial and material error of law.
circuit court review of hearing officer decision continued
Circuit Court Review of Hearing Officer Decision (continued)
  • Circuit Court review is not de novo.
    • Confined to review of the record (driving record, hearing record).
  • - Roman v SOS, 213 Mich App 592 (1995)
  • Question is not whether the Court would have reached the same result.
  • Question is whether the Hearing Officer determination is supported by the requisite evidence.
circuit court review of hearing officer decision continued27
Circuit Court Review of Hearing Officer Decision (continued)
  • “Even if the circuit court would have arrived at a contrary conclusion, the court was nonetheless bound to affirm the [hearing officer's] decision as long as the decision was sufficiently supported.”
    • Michigan Educ Ass'n Political Action Committee v Secretary of State,241 MichApp 432, 445-446; 616 NW2d 234 (2000).
circuit court review of hearing officer decision continued28
Circuit Court Review of Hearing Officer Decision (continued)
  • Competent, material, and substantial evidence on the whole record
    • “Substantial evidence” - evidence that a reasonable person would accept as sufficient to support a conclusion

- More than a scintilla of evidence, but less than a preponderance of the evidence

Dowerk v Oxford Charter Twp, 233 Mich App 62 (1998)

circuit court review of hearing officer decision continued29
Circuit Court Review of Hearing Officer Decision (continued)
  • Abuse of discretion
    • Occursonly when the decision is outside the range of reasonable and principled outcomes. Saffian v Simmons, 477 Mich 8, 11; 727 NW2d 132 (2007).
    • A result so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959).
circuit court review of hearing officer decision continued30
Circuit Court Review of Hearing Officer Decision (continued)
  • No Modification of Revocation
    • If the Circuit Court finds one ofMCL 257.323(4)(a)-(f)-it can only set aside the Secretary of State’s decision; it cannot be modified. No restricted license may be granted. Rodriguez v Secretary of State, 215 Mich App 481 (1996).
    • MCL 257.323(4)clearly and unambiguously withholds authority from the Circuit Court to modify the revocation of petitioner's license. Rodgers v Secretary of State, 159 Mich App 808 (1987).
common problems with circuit court orders
Common Problems with Circuit Court Orders
  • Stipulated Orders
  • Wrong SCAO Form
  • Unchecked Boxes
  • Wrong boxes checked
  • Incorrect Date of Action
  • Illegible
possible consequences of ineffective orders
Possible Consequences of Ineffective Orders
  • Unclear what action was appealed.
  • The action processed is not the action the Court intended.

ex: Court orders remand to DAAD yet it does not set aside an additional suspension.

  • Unclear whether Circuit Court applied the correct standard of review.
  • Processing is delayed.
scao form cc269 revised 3 08
SCAO Form CC269 – revised 3/08
  • Review of Record
    • Appeal of DAAD hearing Example: habitual, second implied consent
    • For license actions prior to 01/01/1992 check applicable box in 1a.
    • For license actions after 01/01/1992 check box b and write in the licensing action
    • Complete section 2
scao form cc268 revised 3 08
SCAO Form CC268 – revised 3/08
  • No Review of Record Needed
    • Court has equity/hardship jurisdiction Example: DA actions, add’l suspension, first implied consent
    • Check applicable box in 1a (second implied consent does not belong)
    • Check box 2 if Court grants full driving privileges
    • Check box 3 if Court grants restricted driving privileges (include end date of license restriction in box 3c
    • Check box 4 if relief is denied
service
Service

Circuit Court Order must be served on the Secretary of State within 7 days of the date the order is signed:

Secretary of StateDriver Assessment and Appeal DivisionP.O. Box 30196

Lansing, Michigan 48909-7696

contact information
Contact Information
  • Bureau of Regulatory Services
  • P. O. Box 30196
  • Lansing, MI 48909-7696
  • 888-SOS-MICH
  • (888-767-6424)
  • www.michigan.gov/sos
  • Tulloch-BrownC@michigan.gov