So you've triggered the implied consent under Michigan law - now what?
Well you have 14 days to file an appeal or your license is gone for a year. Assuming you send that paperwork in, be prepared to wait a few weeks before a hearing is set. The hearing will be set at the nearest SOS location to your address. The officer(s) will receive the same notification to appear. During this time your license is valid, so you can drive as you normally would.
At the day of the hearing, you and your lawyer show up at the location and keep your fingers crossed that the cop doesn't show - why not? Because if the cop doesn't show then you win automatically!
If the cop shows, you're probably going to lose? Why? Because the burden is so low and it's a 51/49 standard of decision vs beyond a reasonable doubt used in criminal cases.
The hearing officers are also usually inclined to uphold the suspension and help the police officers meet their burden on a regular basis. It's frustrating to "trick" the officer or have the officer give incomplete testimony to then have the hearing officer say "hey officer so and so, what about THIS or THAT?
Boooo! - I've had this happen numerous times - the police officer doesn't meet their burden, and the hearing officer fixes it for them.
I usually go into these things looking for one point to hammer home or one slip up to take advantage of
At these hearings, the 4 people in the room are:
The client, the defense lawyer, the cop and the hearing officer
The hearing officer sits in front of the other 3 or are on a video conference from Lansing. Everyone states their name, and the hearing officer asks if any issues need to be discussed before proceeding. Nope we're ready to go!
Both sides usually waive the opening statement. The officer is up first.
Officer practically just reads their police report - they hit on the probable cause to arrest, the fact they arrested client for a DUI offense, testify they read the chemical test rights and finally that my client refused. Most cops have the ability to spit out enough words to meet those 4 points.
The standard is so low that confusion about the rights, back and forth about them, questionable probable cause all get a rubber stamp on this low burden.
If that testimony gives me a major point to argue my case, I will not even cross the cop. The only reason to cross the cop at this point would be enhance a potential trial impeachment by creating testimony to be compared to at a later date, but if my criminal case is already resolved or we're likely resolving, it's more beneficial to keep the secret weapon in the bag.
Nope your honor, no questions from me. I'm not going to ask the cop about the issue I found because they simply forgot to say something vs they said something wrong. If I ask them about it, it gives them a chance to fill in the blanks.
So by passing on the cross, I want to get to the closing and hammer my point home without further testimony.
So now the hearing officer asks if my client wants to testify. Nope, not today.
Go closing arguments? Cop usually just says no, I will rely on my testimony.
My turn - your honor, the officer failed to meet their burden on ____________
The last two times, the officer testified they arrested my client for resisting arrest and never mentioned an arrest for a DUI - that fails to meet burden on "must arrest for a DUI offense" - then I had a cop testify in detail about how "drunk" my client was, PBT, field sobriety, blah blah blah, but never said anything about driving - only the client was found passed out in his car. Sure doesn't sound great, and boy was my client drunk, but there's no testimony you had any evidence my client drove the car - opps.
Here comes the hearing officer to fix both issues!!! - on the officers rebuttal closing, the hearing officer will ask the officer to simply "clarify" - cough cough, fix their incomplete testimony and provide more detail to the hearing officer. I argue that this information was not in the original testimony, hearing officer disagrees that the information was in the testimony, but the hearing officer simply wanted to clarify and had questions before making decision. The hearing officer sees the boxes that need to be checked, but the words must come from the cop's mouth.
At least my client has the ability to get a hardship license at the circuit court!
Attorney Jonathan Paul
ICLE Contributor
www.duiplaybook.com