STATE OF MICHIGAN
CIRCUIT COURT FOR THE 6TH JUDICIAL CIRCUIT OAKLAND COUNTY
KEVIN AARON LANDAU,
Petitioner, Case No. 16-153778-AL
v Hon. Daniel P. O’Brien
SECRETARY OF STATE,
STATE OF MICHIGAN,
Respondent.
/
Arthur H. Landau (P16381)
Attorney for Petitioner
38500 Woodward Avenue, Suite 300
Bloomfield Hills, Ml 48304
(248) 247-1153
Jessica A. Bradley (P62327)
Attorney for the Department of State
Michigan Department of Attorney General
Driver License Restoration Section
Cadillac Place Building, Suite 10-200
3030 West Grand Boulevard
Detroit, MI 48202
(313) 456-0060
/
SECRETARY OF STATE’S BRIEF IN OPPOSITION TO
PETITION FOR RESTORATION OF DRIVER’S LICENSE
1. COUNTER STATEMENT OF FACTS
Petitioner’s license was revoked in June 2012 because he had two or more substance abuse convictions in seven years. See Petitioner’s driving record at Exhibit A, p 1. On April 25, 2016, Petitioner attended a Driver Assessment and Appeal Division (DAAD) hearing before Hearing Officer Dianne Odrobina (Hearing Officer). Petitioner’s request for any driving privileges was denied. See April 29, 2016 DAAD Order at Exhibit B.. Petitioner now appeals to this court.
- ARGUMENT
Petitioner’s driver’s license was initially revoked because he was convicted of
two or more substance abuse violations within a seven-year period. MCL 257.303.
At the time of Petitioner’s last arrest the statute provided:
(2) Upon receiving the appropriate records of conviction, the secretary of state shall revoke the operator’s or chauffeur’s license of a person and deny issuance of an operator’s or chauffeur’s license to a person having any of the following, whether under a law of this state, a local ordinance substantially corresponding to a law of this state, or a law of another state substantially corresponding to a law of this state:
* * *
(c) Any combination of 2 convictions within 7 years for any of the following or 1 conviction for a violation or attempted violation of section 625(6) and any combination of 2 convictions for any of the following within 10 years, if any of the convictions resulted from an arrest on or after January 1, 1992:
- A violation or attempted violation of section 625, except a violation of section 625(2), or a violation of any prior enactment of section 625 in which the defendant operated a vehicle while under the influence of intoxicating or alcoholic liquor or a controlled substance, or a combination of intoxicating or alcoholic liquor and a controlled substance, or while visibly impaired, or with an unlawful bodily alcohol content.
* * *
(4) The secretary of state shall not issue a license under this act to a person whose license has been revoked under this act or revoked and denied under subsection (2) until all of the following occur, as applicable:
- The later of the following:
- The expiration of not less than 1 year after the license was revoked or denied.
- The expiration of not less than 5 years after the date of a subsequent revocation or denial occurring within 7 years after the date of any prior revocation or denial.
- For a denial under subsection (2) (a), (b), (c), and (g), the person rebuts by clear and convincing evidence the presumption resulting from the prima facie evidence that he or she is a habitual offender. The convictions that resulted in the revocation and denial constitute prima facie evidence that he or she is a habitual offender.
- The person meets the requirements of the department.
Pursuant to the statute, Petitioner must prove by a preponderance of the
evidence that the reinstatement of revocation of driving privileges was without sufficient cause or reason pursuant to 2011 MR3; Rule 257.313a(11)(c).
At the most recent hearing, Petitioner testified that the last date of o consumption of alcohol was May 26, 2011. (Tr, p 14). As this was a “Show Cause” hearing, the Hearing Officer’s main questioning to Petitioner involved several positive alcohol readings captured on the interlock device during the time-frame when restricted driving privileges were granted. To all of the readings, Petitioner was adamant that they were not caused by alcohol use, rather, possibly from use of “a steroid inhaler” followed by the use of Listerine mouthwash to clear the residue left from the inhaler. (Tr, p 18).
But to the Hearing Officer, such use of Listerine mouthwash, despite Petitioner’s need to prevent gingivitis, was not acceptable behavior for someone that had been given explicit instructions to not use such a mouthwash in an earlier Order when restricted driving privileges were granted. (Exhibit B, pp 2-3). The Hearing Officer went to great lengths in her current Order at Exhibit B to highlight the portions of her earlier order which explained when a preliminary breath (PBT) test or an ethyl glucuronide (ETG) test should be taken each time a failed alcohol reading was recorded. (Exhibit B, pp 2-3). Though Petitioner received several PBT’s on or near the dates positive alcohol recordings occurred, in no instance was a PBT taken within the time-frame that a PBT reading would be accurate to prove or disprove alcohol consumption. In no instance, was an ETG test taken. In fact, Petitioner, though he had received and read the Order allowing restricted driving privileges, was unaware of what an ETG test even was. (Tr, p 31).
To the Hearing Officer, such a lack of evidence could not lead her to conclude that Petitioner’s alcohol problem was truly under control. (Exhibit B, p 3). Further, she could no longer conclude that “Petitioner poses a low/minimal risk of repeating past behavior when he has done exactly that: attempted to operate his vehicle with Blood Alcohol Content levels on multiple occasions.” (Exhibit B, p 3). Therefore, the Hearing Officer denied Petitioner’s appeal and affirmed the revocation/denial of driving privileges. (Exhibit B, p 3).
It is clear, that if the Order of the Hearing Officer is supported by competent, material and substantial evidence on the whole record, it must be affirmed even if the court on appeal would have ruled differently had it been first reviewing the evidence. Kester v Secretary of State, 152 Mich App 329, 335; 393 NW2d 623 (1986).
When an agency determination is viewed on the record, the Court of Appeals has defined what constitutes “substantial evidence.” Arndt v Dep ‘t of Licensing & Regulation, 147 Mich App 97, 101; 383 NW2d 136 (1985):
It consists of more than a scintilla of evidence but may be substantially less than a preponderance of the evidence. This Court will affirm as long as the hearing examiner’s findings are not contrary to law and are supported by competent, material, and substantial evidence, even if this Court might have reached a different result had it been making the initial decision. It is not a reviewing court’s function to resolve conflicts in the evidence or to pass on the credibility of witnesses. Great deference is given to the findings of the hearing examiner because, as the trier of fact, he or she had the opportunity to hear the testimony and view the witnesses. (Citations omitted)
Judicial review of administrative proceedings requires that great deference be
given to the findings of the hearing officer. Russo v Dep’t of Licensing & Regulation, 119 Mich App 624, 631; 326 NW2d 583 (1982). In cases where there is room for varied interpretations of testimony, so long as the hearing officer’s o interpretation is supported by the record, a credibility determination should not be changed. Walters v Secretary of State, 170 Mich App 466; 429 NW2d 188 (1988). A reviewing court should not substitute its judgment for that of the hearing officer as to credibility determinations. Miller v Grand Haven Bd of Education, 151 Mich App 412, 422; 390 NW2d 255 (1986).
To determine whether an agency’s decision is “arbitrary,” the circuit court a.) Q.)O must determine if it is “without adequate determining principle,” or is otherwise “[f]ixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance… decisive but unreasoned.” City of St Louis v Michigan Underground Storage Tank Financial Assurance Policy Board, 215 Mich App 69, 75; 544 NW2d 705 (1966). The evidence on the record supports the Hearing Officer’s decision.
After considering the testimony of Petitioner and examining all of the evidence, the Hearing Officer determined that Petitioner failed to meet his burden of proof.
This court’s jurisdiction to review this matter is very limited. This Court may only review the record as indicated in MCL 257.323(4); 2016 PA 117, which reads in part:
(4) Except as otherwise provided in this section, in reviewing a determination resulting in a denial, suspension, restriction, or revocation under this act, the court shall confine its consideration to a review of the record prepared under section 322 or 625f or the driving record created under section 204a for a statutory legal issue, and may determine that the petitioner is eligible for full driving privileges or, if the petitioner is subject to a revocation under section 303, may determine that the petitioner is eligible for restricted driving privileges. The court shall set aside the secretary of state’s determination only if 1 or more of the following apply:
(a) In determining whether a petitioner is eligible for full driving privileges, the petitioner’s substantial rights have been prejudiced because the determination is any of the following:
(i) 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.
The Hearing Officer properly concluded that Petitioner failed to meet his burden under the statute and the administrative rules, thus, the denial must be upheld.
CONCLUSION AND RELIEF SOUGHT
For the reasons set forth above and based upon the evidence presented hv
Petitioner at his administrative hearing. the Secretary of State asserts that the
ID-AAI) Order was supported hv the evidence and should be affirmed.
Respectfully submitted.
Bill Schuette
Attorney General
Jessica A. Bradley (P62327)
Assistant Attorney General
Attorneys for the Department of State
Driver License Restoration Section
Cadillac Place Building Suite 10-200
3030 West Grand Boulevard
Detroit. MI 48202
(313) 456-0060
Dated: December 2016
Landau, Kevin/2016.12.09 Brief in Opposition AG2016-0144957
EXHIBIT A
EXHIBIT В
STATE OF MICHIGAN
CIRCUIT COURT FOR THE 6TH JUDICIAL CIRCUIT OAKLAND COUNTY
KEVIN AARON LANDAU,
Petitioner, Case No. 16-153778-AL
v Hon. Daniel O’Brien
SECRETARY OF STATE,
STATE OF MICHIGAN,
Respondent.
/
Arthur H. Landau (P16381)
Attorney for Petitioner
38500 Woodward Avenue. Suite 300
Bloomfield Hills, Ml 48304
(248) 247-1153
Jessica A. Bradley (P62327)
Attorney for the Department of State
Michigan Department of Attorney General
Driver License Restoration Section
Cadillac Place Building, Suite 10-200
3030 West Grand Boulevard
Detroit, Ml 48202
(313) 456-0060
__________________________________________________/
PROOF OF SERVICE
The undersigned being first duly sworn, deposes and says that on or before
December 98 2016, she served a copy of the Secretary of State’s Brief in Opposition to Petition for Restoration of Driver’s License upon Counsel of Record in the above cause by mailing the same to him at his respective address, in an envelope bearing first class postage fully prepaid thereon.
__________________________________________
Mary C. Burke-Gianino
Landau, Kevin/2016.12.09 POS Brief in Opposition AG2016-0144957