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“Driver’s License Appeals to the Circuit Court”

by Apr 30, 2018


So, you have gone through an administrative hearing before an Administrative Law Judge with the Drivers Assessment Appeal Division of the Michigan Secretary of State in an attempt to get your driving privileges restored, and you were not successful. You thought you had presented a pretty good case and feel your petition was unjustly denied. Typically, you cannot go back before the Michigan Secretary of State again for another year. However, you do have certain appeal rights that could take your case up to the Circuit Court, typically in the county in which you reside. Such a petition generally must be filed within 63 days after the determination was made by the Secretary of State.

Once a Petition for Restoration of Driving Privileges is filed with the appropriate Circuit Court, a hearing is set. This is usually not set more than 63 days from the date the Order to Show Cause is submitted as part of the pleadings. Service then must be made of all of the pleadings on the Michigan SOS as well as the local prosecuting attorney, who often acts as counsel on behalf of the SOS. Depending upon the type of the denial, suspension or restriction involved, the Court may or may not be able to take testimony. This is typically from the petitioning party, which may include discussing the hardship being incurred. In other cases, the Court must confine its consideration to a review of the record of the administrative hearing or to the driving record of the petitioner.

In determining whether the petitioner is eligible for full driving privileges, the Court must find that the petitioner’s substantial rights have been prejudiced on account of any 1 or more of 6 factors. These include the following which can rarely be established: violation of the US or State constitution; the determination was in excess of the Secretary of State’s authority or jurisdiction; was made upon unlawful procedure which resulted in material prejudice to the petitioner; or was affected by other substantial and material errors of law. More commonly, the following will have to be shown: that the Secretary of State determination was not supported by competent, material, and substantial evidence on the whole record OR the determination was arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.

In cases involving whether the petitioner is even entitled to a review of a revocation or denial, you must establish that the petitioner’s substantial rights have been prejudiced, as described above, AND that that a certain amount of time has transpired (typically 1- 5 years after the most recent revocation or denial was made) before the petitioner would be eligible for a restoration of his/her driving privileges. If the revocation or denial was because the petitioner was a habitual offender, he/she must rebut by clear and convincing evidence such a presumption and must establish to the court’s satisfaction that he or she is likely to adhere to any requirements imposed by the Court.

If the Court determines that the petitioner is entitled to restricted driving privileges, the Court must require installation of an ignition interlock device for at least a year before the petitioner is entitled to return to the Michigan Secretary of State for a hearing on full restoration of his/her driving privileges. This is a device that requires the petitioner/operator to blow into a tube in order to start the vehicle and to periodically blow into the tube again as you roll down the road, in order to make sure that the driver has not consumed any alcoholic beverages before (or while) being behind the wheel.

Even with an ignition interlock device installed, an individual cannot drive a commercial motor vehicle that hauls hazardous materials. If the petitioner is to drive for his/her employer, the Court must notify the employer of the ignition interlock requirement, although the employer has no obligation to install such ignition interlock device on any of its vehicles. (The installation and monthly monitoring fee can easily exceed $100/month). If the petitioner is found to be in violation of the ignition interlock device, removes or attempts to remove such a device, or fails to maintain no-fault insurance on his vehicle, the Secretary of State shall immediately revoke the petitioner’s restricted license.

It is very difficult to establish the Secretary of State determination was not supported by the evidence or that its determination was arbitrary or capricious, or was an unwarranted exercise of discretion. Nevertheless, we have prevailed any number of times on such claims, over the years, when the facts supported such a claim.

If you have lost your driving privileges and have failed to prevail in an administrative hearing before the Michigan Secretary of State, do not sit on your rights waiting for another year to pass before trying again. Contact the professionals at Damon, Ver Merris, Boyko & Witte, PLC, who can review what transpired at the Secretary of State level and give you an honest assessment of your chances of prevailing in Circuit Court. Keep in mind that not every case is a winner and that you must act quickly, or you may forfeit a right to such an appeal. Call us at (616) 975-9951 to set up an appointment to review your situation. We can help guide you through this process and give you the best possible chance of getting back on the road. Don’t you owe it to your family? Call today. – Larry a. Ver Merris / April 30, 2018

While this posting originates from a law office, none of the contents should, in any way, be considered legal advice. If you have not signed a retention letter describing the legal services to be provided and the amount to be paid for such services, you are not a client of this firm.

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