Driver License Restoration Appeal to Circuit Court
Restoration appeals are governed by MCL 257.323. Prior to January 1, 1992, the Department and the Circuit Court had concurrent jurisdiction over habitual offender licensing matters. This changed with the Legislature's comprehensive drunk driving reform package that was passed in 1991 and which became effective January 1, 1992. Similar to administrative appeals under the Michigan Administrative Procedures Act (APA) [1969 PA 306, as amended], appeals to the Circuit Court are now limited to a review of the record.
The record reviewed on appeal is the hearing record created under MCL 257.322. If the operator was ineligible for a Departmental appeal because the minimum time of the revocation had not run, then the record subject to review is the driving record created under MCL 257.204a.
Under MCL 257.323(4), habitual offender license revocations can be set aside by the Circuit Court only if the petitioner's substantial rights had been prejudiced because the Departmental determination was:
- In violation of the Constitution of the United States, the State constitution of 1963, or a statute.
- In excess of the Secretary of State's statutory authority or jurisdiction.
- Made upon unlawful procedure resulting in material prejudice to the petitioner.
- Not supported by competent, material, and substantial 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.
As can be seen, the intent is to make offenders exhaust their administrative remedies. The Circuit Court may affirm the action of the agency, grant full license restoration or grant restricted driving privileges pursuant to MCL 257.323(4)(b) and (5).
The repeat offender reforms that became effective October 1, 1999, narrowed the review of Department licensing actions even further. Except for the 4 instances below, the Legislature limited Circuit Court appeals to a review of the record or a legal issue as listed above. Hardship appeals are still available under MCL 257.323(3) in the case of:
- A first implied-consent suspension under MCL 257.625f.
- A Driver Assessment suspension or restriction under MCL 257.320 and MCL 257.310d.
- A suspension imposed under MCL 257.904(10) or (11).
- A denial under MCL 257.303(1)(d).
Note that under MCL 257.323(3), Circuit Court review of Driver Assessment actions and Section 904(10) or (11) actions is limited to the licensing actions of denial, suspension and restriction and does not include revocations. The word "revocation" was deleted from the statute in the clean-up package. 1999 PA 73. In Wilson v Secretary of State, unpublished order of the Court of Appeals, entered July 17, 2000 (Docket No. 227444), the Court of Appeals stated:
MCL 257.323(3), as amended by 1999 PA 73, effective October 1, 1999, does not provide authority for a circuit court to set aside or modify the revocation of an operator's license.
MCL 257.323a specifically provides that an ex parte license based on hardship is not available pending appeal. MCL 257.323a(2) states:
The court shall not enter an ex parte order staying the suspension, denial, or revocation if the order is based upon a claim of undue hardship.
MCL 257.323b addresses cancellation of a minor's license upon the request of the person who signed the application on behalf of the minor; and MCL 257.323c specifies the restricted relief that is available, if authorized pursuant to MCL 257.323(3), for a first implied-consent violation appeal.
Judicial review of an administrative licensing sanction is governed by the law in effect at the time the offense was committed or attempted. MCL 257.320e(6).
State Court Administrator's Form Orders:
The State Court Administrative Office provides approved form petitions and orders for restoration appeals, which parties are encouraged to use.
Venue and Time Limits:
A person 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. Roberts v Secretary of State, unpublished opinion per curiam of the Court of Appeals, issued February 2, 1999 (Docket No. 205616). A peace officer, with the consent of the prosecuting attorney, may appeal a determination of a hearing officer from an implied-consent hearing. MCL 257.323(1); MCL 257.625f(8)
Each petition shall include the person's full name, current address, birth date, and driver's license number. The order setting the hearing, the petition, and all supporting affidavits shall be filed in the Secretary of State's office located at 430 West Allegan Street, P.O. Box 30196, Lansing, MI 48909-7696. 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. MCL 257.323(2)
Either the local prosecuting attorney or the Attorney General represents the Secretary of State on a restoration appeal, depending on the location. For each appeal, the Department sends the prosecuting attorney or the Attorney General a case file that includes a certified driving record and other necessary documents for the hearing.
Requests for Transcripts:
A request for a transcript of a driver license appeal hearing should be sent to:
Michigan Department of State
Administrative Hearings Section
P.O. Box 30196
Lansing, MI 48909-7696
Service of Final Order:
When a final court order is signed and entered, the Petitioner should serve a certified copy on the Secretary of State immediately. MCL 257.323(3) requires the service of a certified order within 7 days. Prosecutors are required to serve the agency within 7 days in order to receive reimbursement for representing the Department. The Orders can be served in person at the Secretary of State's Office located at: 430 West Allegan, Lansing, Michigan; or by mail at: Michigan Department of State, Administrative Hearings Section, P.O. Box 30196, Lansing, Michigan 48909-7696; or by fax to 517-335-2190.
The Department of State will act upon a final court order after it is received. The Department has up to 21 days to decide whether to appeal by right and/or to post the Order to the master driving record. MCR 7.204(A)(1).
Appeals to Circuit Court
License Restoration Appeal Process
Transcript Request from Driver License Appeal Hearing
Driver License Appeal Practice Manual