By Michael Brock and Matthew Zick
There are two basic kinds of Circuit Court appeals in cases where a client has lost his or her license because of drinking and driving, and they are quite different from each other. Whether or not you should file an appeal on behalf of your client or wait out the time depends on what kind of appeal it is, and the circumstances of your case. The cases are as follows:
1. HARDSHIP APPEAL (implied consent case)—If your client has refused the breathalyzer and had his or her license suspended you can go for a hardship appeal.
2. MERIT APPEAL—(MCL 257.322(4)) If your client has lost their appeal at the DAAD hearing you can go for a merit appeal to the Circuit Court. This is not a hardship appeal and is a much more difficult case to make. Essentially, it requires showing an error of law or major abuse of discretion by the hearing officer.
In Wayne County, these cases are assigned to a judge in the civil division at the CAYMC, not as you might suspect, at The Frank Murphy Hall of Justice, and the cases are heard on Friday during motion call.
The main difference between filing the two kinds of cases is that a hardship appeal requires 20 days notice to the Secretary of State, whereas the Merit Appeal must be set between 50 and 63 days ahead. The reason for this is that the Attorney General’s Office, representing the Secretary of State must have time to review the transcript of the DAAD Hearing that the attorney must order. At the time you file the appeal you must show that you have ordered the transcript.
At a Hardship Appeal the judges want and evaluation. The judge is not going to grant a license without it. The judge has the power to modify, set aside, or affirm the suspension. They can grant a restricted license on a hardship appeal.
On a Merit Appeal the judge cannot grant a restricted license. The options are: 1. Granting a full license; 2. Affirming the Hearing Officer’s decision; or, 3. Remanding the case back to the DAAD for an expedited hearing. These cases are a review of the law and the client and his attorney are not supposed to introduce any new evidence.
However, as a practical matter, many, if not most of the judges will want an updated substance abuse evaluation to be sure the client is maintaining sobriety at the time they are hearing the case. We have never had a case where the judge has struck a merit appeal, but have had many where the judge has said that he or she would not consider the case without the updated evaluation. If you show up in court without it, you are most likely wasting your time and your client’s money.
Occasionally on a Merit Appeal, you will see an attorney request that the case be remanded to be heard by a different hearing officer, if the lawyer feels the original hearing officer who denied the DAAD appeal had a jaundiced view of his client. The judge does not have to honor the request, but they sometimes do.
The hardship appeal can only be the first implied consent appeal, and they are usually for the first offense. If it is a second offense within seven years your client is going to have his license pulled by the SOS when the conviction is registered anyway, so it makes no sense to appeal.
The client will still get six points on their license and will be off the road for a minimum of 60-90 days, so the penalty is still harsher than if they had taken the breathalyzer. But judges are more inclined to show leniency because they know that those who take the breathalyzer and plead to impaired will get only four points and a restricted license for 90 days.
Matt is very conservative on taking Merit Appeal cases. It used to be that if you lost at circuit court it did not reset the time you could reapply for a DAAD hearing a year after your first denial. The client was out the money, but no time. Now that is not the case; the clock starts ticking from the date of the Circuit Court Hearing, so if you lose the client is out both time and money.
Also, judges are reluctant to grant a full license in these cases. The best you will usually do is a remand, so that raises serious questions about whether it is in a client’s interests to risk the money and the time. Once again, there has to be an error of law, or a glaring abuse of discretion to justify filing an appeal. If the case is remanded to same hearing officer, you may get the same result. But about 50% of the time, you will get a different result, so it can be worth it if you have a strong case.
If your client gets arrested for driving without a license between hearings, the appeal with be withdrawn and the client’s license is gone for another year, and this has happened. Clients need to obey the law or they are just digging the hole deeper.
To summarize, the odds of success are pretty good in a Hardship (implied consent) Appeal, with no real downside for the client. But Merit Appeals require a strong case to make it worth the client’s money, time, and associated risks.
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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com.
