When to Appeal the Unsuccessful DAAD Hearing

by baronedefensefirm on March 30, 2009

Ok, so despite all of your best efforts and hard work, you presented your case to the Hearing Officer and lost.  This probably seems unfair, and maybe the Hearing Officer was wrong.  Now what do you do?

Michigan drivers have the right to appeal a Hearing Officer’s denial of their petition for restoration of driving privileges.  These appeals take place in the Circuit Court.  Such an appeal may or may not be in the driver’s best interest.  Here are some things to keep in mind when you and your attorney decide whether or not to appeal

First, you should understand that the “standard of review” is de novo for questions of law, and clearly erroneous for questions of fact.  Questions of law are things that must be decided by an application of a legal standard.  So, with questions of law the issue for the Circuit Court would be whether or not the Hearing Officer applied the law correctly.  The Latin term “de novo” basically means “from new,” meaning that the Circuit Court Judge starts from scratch in answering this question.  The “clearly erroneous” standard is a very high one, and one that is not easily overcome.  This means that in applying this standard to the facts of your case the Circuit Court Judge will be highly deferential, and will not disturb the ruling unless he or she has a definite and firm conviction that the Hearing Officer was wrong.

The Michigan statute that discusses these matters is M.C.L.A. § 257.323.  Section (4) of the statute provides that the Circuit Court may review the record and set aside the Secretary of State’s determination if your “substantial rights” have been prejudiced because the determination is found to be:

(a)       In violation of the Constitution of the United States, the State Constitution, or a statute;

(b)       In excess of the Secretary of State’s statutory authority of 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, or;

(f)        Affected by other substantial and material error of law.

Appeals must be filed within 63 days of the final determination or 182 days if there is good cause (i.e.: waiting on transcript).  The Secretary of State must have 50 days notice prior to the hearing date at the Circuit Court.

So the bottom line is this: it is very difficult to win an appeal from an unsuccessful driver license restoration hearing.

Also, here is a word of caution for you.  If you lose on appeal the one-year waiting period does not begin to run until after the Circuit Court has issued the denial.  In other words, if you have to wait for a transcript and don’t file your appeal for six-months, then lose, you’ve just added six-months to your waiting period.  On the other hand, you or your lawyer can always ask for the Circuit Judge to order the Secretary of State to conduct a hearing before this one year period has elapsed.

Either way, there certainly are risks involved, or you should discuss these with your lawyer before you decide how best to proceed.


This post was written by...

– who has written 203 posts on Michigan DUI and License Restoration Lawyers.

Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.

{ 1 comment… read it below or add one }

ian bogden January 2, 2016 at 12:41 pm

need, info


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