Appealing a Secretary of State license decision to circuit court in Michigan

A driver who loses a Secretary of State licensing decision, such as a refusal suspension or a denied license restoration, can ask the circuit court to review it under MCL 257.323. The petition must be filed within 63 days after the decision, or within 182 days if the court finds good cause.^[1] In most cases the court reviews only the record of the hearing, and it can overturn the decision only on the grounds the statute lists.^[2]

This is sometimes called a "license appeal" or a "hardship appeal." The second term is narrower than many people expect. The court's power to order a restricted license is limited by statute, and for some sanctions it does not exist at all.

Which decisions can be reviewed, and in which court?

A person aggrieved by a final Secretary of State determination denying, revoking, suspending or restricting a license may petition for review.^[1] The county depends on the kind of case:^[1]

• a refusal suspension under section 625f is reviewed in the circuit court of the county where the person was arrested;^[1]
• all other cases go to the circuit court in the person's county of residence.^[1]

A driver who wins a refusal hearing can also be brought into circuit court. The officer who filed the refusal report may, with the prosecuting attorney's consent, petition the court in the county of arrest to review the hearing officer's decision.^[6]

Some suspensions cannot be appealed to the Secretary of State at all. The mandatory OWI suspensions in section 319 are not subject to appeal to the Secretary of State, and they apply despite a court order unless the order complies with section 323.^[7] Section 303 revocations likewise must be imposed despite a court order unless the order complies with section 323.^[8]

Deadlines and steps

Step	Time limit
Motion for reconsideration or rehearing with the hearing office (optional)	Within 21 days after the hearing officer's decision[9]
File the circuit-court petition	Within 63 days after the decision; up to 182 days for good cause[1]
Court sets the hearing date	Not more than 63 days after the order setting it, unless section 323 provides otherwise[10]
Serve the order, petition and affidavits on the Secretary of State in Lansing	At least 20 days before the hearing, or at least 50 days before it when the review is of a hearing record[10]
Order the hearing transcript	Within 63 days of the decision, or 182 days if the court extends the filing period[9]
File a certified copy of a first-refusal order with the Secretary of State	Within 7 days after the order is entered[3]

The Secretary of State says transcripts needed for a circuit-court matter should be requested at least 50 days before the court date, and lists per-page charges.^[11] In a refusal case, the hearing officer must send the court the record at least 10 days before the review, and the evidence portion need not be transcribed if the only question is whether the court will order a restricted license.^[12]

Courts differ in how they schedule and handle these petitions, so the local circuit court clerk is the place to confirm filing fees and local practice.

The standard of review: what the court can and cannot do

Except as section 323 otherwise provides, the court confines its review to the record of the Secretary of State hearing, or to the driving record for a statutory legal issue. It may set the decision aside only if the driver's substantial rights were prejudiced because the decision was:^[2]

• in violation of the U.S. or Michigan constitution or a statute;^[13]
• in excess of the Secretary of State's statutory authority;^[13]
• made on unlawful procedure resulting in material prejudice;^[13]
• not supported by competent, material and substantial evidence on the whole record;^[13]
• arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion;^[13]
• affected by other substantial and material error of law.^[13]

That means a circuit-court petition is not a second restoration hearing. The court is not asked to decide afresh whether the driver should be licensed, only whether the hearing officer's decision falls under one of those grounds.

Restricted driving after a revocation

When the decision involved a section 303 revocation, the court may find the driver eligible for restricted driving privileges, but only if all of these apply:^[14]

1. the driver's substantial rights were prejudiced on one of the grounds above;^[14]
2. the 1-year minimum (or 5-year minimum after an earlier revocation within 7 years) has passed;^[14]
3. the court finds the driver meets the department's rules;^[14]
4. for a repeat-offense revocation, the driver rebuts the habitual-offender presumption by clear and convincing evidence and shows the court they are likely to follow its requirements.^[14]

For these findings the court may take additional testimony to supplement the record, but it may not expand the record.^[14]

An order granting restricted driving must require a working interlock on each vehicle the driver operates for at least 1 year before the driver may return to the Secretary of State for a hearing, provide a way to verify no-fault insurance, bar hazardous-material commercial driving, and direct revocation for listed violations. The court does not keep jurisdiction over the license afterward.^[5] The listed violations include breaking the restrictions, removing the interlock without authorization, a "major violation," drinking alcohol or using a controlled substance without a prescription, and a new OWI arrest.^[15] What follows the interlock year is covered in after restoration: the interlock-restricted license.

First refusals: the "hardship" exception

For a suspension for a first refusal under section 625f, the court may take testimony and examine all the facts and circumstances. It may affirm, modify or set aside the suspension, but it may not authorize driving a commercial vehicle that hauls hazardous material.^[3]

The court may order a restricted license after a refusal only if the person states under oath, and the court finds, that the person cannot take public transportation to work, treatment or school and has no family member or other person able to drive them. The order must state the work location, the approved routes and the permitted travel times.^[4]

A common belief is that a hardship license is available after any refusal. It is not. The court cannot grant one if the person had a refusal suspension within the preceding 7 years, had more than 24 points in the 2 years before the suspension, or needs it to drive a commercial vehicle requiring a group designation.^[16] Section 625f contains no authority for the Secretary of State to issue its own restricted license for a refusal.^[17]

The refusal hearing itself is explained in the implied consent hearing.

Other situations where the court may hear testimony

Besides first refusals, section 323 lets the court take testimony for denials, suspensions or restrictions under section 303(1)(d), section 320, section 904(10) or (11), and licensing actions under section 310d.^[3] Those cover matters outside this guide, such as driving-while-suspended add-on periods.

Appealing the criminal case is different

A section 323 petition reviews a Secretary of State decision.^[1] An appeal of the OWI conviction itself follows the criminal appeal rules. If the judgment and sentence are appealed to circuit court, the court may order the Secretary of State to stay the suspension, revocation or restricted license while the appeal is pending.^[18] See appealing an OWI conviction and the table of OWI case deadlines. For the restoration hearing whose decision is reviewed in a petition on a revocation, see license restoration hearings and license revocation for repeat OWI.