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
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
 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 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
 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
 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
 MCL 257.323(3)
 DA Actions
 Implied Consent Suspension
 Mandatory Additional Suspension
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)
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
 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
 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
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 noncommercial 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)


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 (continued)
2nd or Subsequent Implied Consent Suspension
 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 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
 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
 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)
 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 (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)
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)
 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
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
 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
 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

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:
a) In violation of the Constitution of the United States,
the state constitution of 1963, or a statute.
b) In excess of the secretary of state's statutory
authority or jurisdiction.
c) Made upon unlawful procedure resulting in material
prejudice to the petitioner.
d) Not supported by competent, material, and
substantial evidence on the whole record
e) Arbitrary, capricious, or clearly an abuse or
unwarranted exercise of discretion.
f) Affected by other substantial and material error of
law.
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 (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 Mich
App 432, 445-446; 616 NW2d 234 (2000).
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 (continued)
 Abuse of discretion
• Occurs only 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 (continued)
 No Modification of Revocation
• If the Circuit Court finds one of MCL
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
 Stipulated Orders
 Wrong SCAO Form
 Unchecked Boxes
 Wrong boxes checked
 Incorrect Date of Action
 Illegible
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
 Review of Record
• Appeal of DAAD hearing
Example: habitual, second implied consent
ˉ For license actions prior to 01/01/1992
check applicable box in 1a.
ˉ For license actions after 01/01/1992 check
box b and write in the licensing action
ˉ Complete section 2
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
ˉ Check applicable box in 1a (second implied
consent does not belong)
ˉ Check box 2 if Court grants full driving
privileges
ˉ Check box 3 if Court grants restricted driving
privileges (include end date of license
restriction in box 3c
ˉ Check box 4 if relief is denied
Service
Circuit Court Order must be served on the
Secretary of State within 7 days of the date the
order is signed:
Secretary of State
Driver Assessment and Appeal Division
P.O. Box 30196
Lansing, Michigan 48909-7696
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