Hardship Driver's License Appeal

If your driving privileges have been suspended or revoked, you may be able to seek and get relief in the circuit court. You will have to convince the court that the revocation or suspension of your license is creating a “hardship.” I will discuss in more detail what that means and when you can ask the circuit court for relief.

What Types of Suspensions May be Appealed for Hardship

Under MCL 257.323(3) a petitioner may appeal to the circuit court for the following types of suspensions:

1) points, accidents, or incompetency to drive MCL 257.320

2) driving while the license is suspended or revoked MCL 257.904(10),(11)

3) a first implied consent suspension MCL 257.625f

4) probationary license suspensions MCL 257.310d

5) physical or mental disability suspensions MCL 257.303(1)(d)

What Types of Hardships Cannot be Appealed for Hardship

1) Suspensions listed under MCL 257.319 (e.g. reckless driving)

2) Suspensions due to financial responsibility (however, if a procedural error led to a financial responsibility suspension, that may be appealed)

Filing the Claim of Appeal

Michigan Court Rules (MCR) 7.120 states that all claims of appeals must conform to MCR 7.104(C)(1). A claim of appeal must include:

a) appellant's full name, current address, date of birth, and driver's license number

b) state that “[Appellant] claims an appeal from the decision entered on [date] by the Secretary of State” and

c) consice statements of the following:

   i. the nature of any determination by the Secretary of State

   ii. the nature authorizing the Secretary of State's determinations

   iii. the subsection of MCL 257.323 under which the appeal is taken; and

   iv. the facts on which venue is based.

 The claim of appeal must be signed and you must attach as exhibits a copy of the Secretary of State's determination and any affadavits supporting the claim of appeal.

Determining Venue

Venue is proper for a hardship restoration petition to the circuit court if it is:

1) in the county of the arrest (if the denial or suspension was for an implied consent refusal)

2) pursuant to the order of the district court under MCL 257.328 (proof of insurance violations); or

3) in the driver's county of residence for all other cases.

What Needs to be Filed and Paid

When seeking a hardship license, the following have to be filed with the circuit court:

1) an appeal for restoration form

2) an order to show cause

3) filing fee

On the day of the final hearing, the appellant will need to bring an order of restoration and the judgment fee. In some jurisdictions the judgment fee is due at the time of filing so check with the court clerk before filing. Also, be sure to have at least three copies of all pleadings with you.

Detailing the Hardship

Probably the most important part of this process is convincing the court that you need a license because to do without one is causing an undue hardship. It is important to present enough evidence to convince the court of this. Here are some important points to stress during the pleadings and the hearing.

·     Describe the effect the suspension has on the appellant's ability to earn a living or provide for his family

·     Be honest and reasonable-- if your driving record is pages long of infractions and violations or the current suspension is a long one, concede that your driving privileges should not be completely restored

·     Be willing to accept that your driving privileges may be restricted to essential driving activities, such as work, medical treatment

·     If you are appealing an implied consent refusal, you must state that public transportation is unavailable and that you have no family members who can provide transportation

Deadlines for Filing

Hardship appeals must be filed within 63 days of the date “the determination is made” under MCL 257.323(1). The determination date is the date of the order and not the date of the hearing. The filing deadline may be extended to 182 days if good cause is shown.  While filing a hardship appeal does not stay the enforcement of the suspension, an appellant may file for a stay of enforcement under MCL 257.323a.

The Final Hearing

The Secretary of State will be represented by an assistant Attorney General or an assistant local prosecutor. This is essentially when you get to orally make an appeal to the court. All positive points should be emphasized such as a successful alcohol assessment, AA attendance, rehab completion as well as detailing the hardship such as not being able to get to work and no reasonably alternative means of transportation are available.

If the court grants your appeal, make sure you have an order of restoration ready. If the court does not grant your appeal, request another one in approximately three months.

Implied Consent Appeals

If you appeal is from a refusal to submit to a chemical test such as breath, blood, or urine, the judge is limited to determining whether the implied consent hearing officer's findings were supported by substantial, material, and competent evidence on the whole record and the findings were not contrary to law. For these hearings the Secretary of State must be given at least 50 days notice. Also make sure you get the transcript from the hearing because they are only kept for 182 days.

DO I Need a Lawyer?

Losing your driving privileges is very difficult and stressful and it provides a harsdhip not only on your but on those around you who are either counting on you to be their provider or those who now become your defacto chauffeurs. The process is very tedious and cumbersome. While you can represent yourself, it is not recommended. You need someone with experience who can walk you through the process and who knows the ins and outs as to what works and what doesn't. A lawyer will also help you be prepared for the day of the hearing. The stakes are too high to risk losing. Consult with a driver's license appeals attorney in your area to handle your appeal.