Friday, December 3, 2010

Circuit Court Appeals

I am often asked about a Michigan driver’s right to appeal to the Circuit Court.  Many drivers and even some attorneys believe that they can appeal to the Circuit Court and obtain their drivers license.  In most instances this is no longer true. 

Even when Circuit Court appeals are available they are rarely worth pursuing.  To understand why I believe this to be true please see “When to Appeal the Unsuccessful DAAD Hearing.”

History of the Circuit Court Appeals:

Prior to January 1, 1992, drivers could petition directly to the circuit court to seek hardship relief for restricted driving privileges or full restoration. Back in then courts granted relief in approximately 85 percent of the appeals.  I remember this because during this time period I was a clerk for Judge Kuhn a now retired Oakland County Circuit Court judge.

I left my employment with Judge Kuhn in 1991, and the Legislature passed a comprehensive drunk driving reform package in 1991, effective January 1, 1992.  This new drunk driving law limited appeals to circuit court to a review of the record similar to other administrative appeals under the Michigan Administrative Procedures Act (APA).

Based on this new law a Circuit Court Judge could only set aside a habitual drunk driver’s license revocation (with an alcohol arrest on or after January 1, 1992), if  the driver’s lawyer could show that the revocation was illegal because it was

  • In violation of the Constitution of the United States, or the State Constitution of 1963, or of a statute.
  • In excess of the statutory authority or jurisdiction of the Secretary of State.
  • Made upon unlawful procedure resulting in material prejudice to the petitioner.
  • Not supported by substantial, material, and competent 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. 

This goal of limiting the Circuit Court Jurisdiction was expanded in the most recent major change in Michigan’s drunk driving laws which became effective October 1, 1999. This time the Michigan Legislature further limited the review of a Circuit Court to a review in only three circumstances.  This new law completely eliminated appeals for license revocations.  The three instances where license appeals to the Circuit Court can still be taken are:

  • a first implied consent suspension, Section 625f,
  • a Driver Assessment action pursuant to Section 320, Section 303(1)d, and Section 310d, and
  • a suspension imposed under Section 904(10), or (11). 

Unlike the days when I clerked for Judge Kuhn, this new law also eliminated hardship an ex parte license pending appeal.  Another big change was that the Circuit Court could also not order restricted driving privileges. 

Venue and Time Limits:

Your lawyer may file a petition with the circuit court for relief from a final determination by the Secretary of State in his or her county of residence except for implied consent appeals which must be filed in the county where the arrest occurred. Petitions must be filed in Lansing within 63 days after the final determination is made except that for good cause shown the court may allow filing a petition within 182 days.

The Secretary of State must be notified not less than 20 days before the hearing. If there is a review of the record, 50 days notice must be provided to the Department so that a transcript may be prepared. 

A peace officer, with the consent of the prosecuting attorney, may appeal a determination of a hearing officer from an implied consent hearing.

Each petition shall include the person’s full name, current address, birth date, and driver license number. The order setting the hearing, the petition, and all supporting affidavits shall be sent to:

Driver Assessment and Appeal Division

P.O. Box 30196

Lansing, MI 48909-7696.

Requests for Transcripts:

A request for a transcript of a DAAD hearing should be sent to:

Michigan Department of State
Driver Assessment and Appeal Division
Attn: Transcription Unit
P.O. Box 30196
Lansing, MI 48909-7696

Fax Number: (517) 335-2190 or (517) 335-2189


Service of Final Order:

If the Court restores your driving privileges, then your lawyer must serve a copy (send to them by first class mail) of the order on the Secretary of State within seven days of entry, which is usually the date of your court hearing.  A failure to do can leave you open to a driving with suspended license because without a copy of the order the Secretary of State cannot post this information to your driving record or send to you an Authorization for Licensure.

Here are Many Helpful Forms to Help You Obtain Your Michigan Driver’s License:

  1. Affidavit and Order for Restricted License
  2. Appeal of Suspension, Revocation, or Denial of Driver License
  3. Notice of Non-Compliance: Drunk Driving Offense
  4. Order for Substance Abuse Evaluation
  5. Order Regarding Driver License Restoration
  6. Summary of Substance Abuse Assessment Report