2.7Motor Vehicle Code - Secretary of State¹

“A person aggrieved by a final determination of the secretary of state denying the person an operator’s or chauffeur’s license, a vehicle group designation, or an indorsement on a license or revoking, suspending, or restricting an operator's or chauffeur's license, vehicle group designation, or an indorsement may petition for a review of the determination in the circuit court in the county where the person was arrested if the denial or suspension was imposed under [MCL 257.625f] or under the order of a trial court under [MCL 257.328] or, in all other cases, in the circuit court in the person’s county of residence.” MCL 257.323(1).

“[MCR 7.120] governs appeals to the circuit court under the Michigan Vehicle Code . . . from a final determination by the Secretary of State pertaining to an operator’s license, a chauffeur’s license, a vehicle group designation, or an endorsement.” MCR 7.120(A). Unless provided otherwise in MCR 7.120, the rules set out in MCR 7.101—MCR 7.115 apply. MCR 7.120(A).²

In an appeal of right or late appeal, a person must file a petition for review within 63 days of a final determination by the Secretary of State (SOS). MCL 257.323(1). However, for good cause shown, the court may allow the person to file the petition within 182 days of the final determination. Id. See also MCR 7.120(B)(1); MCR 7.120(C)(1).³ See MCR 7.120(C) for additional information on applications for late appeal.

A.Manner of Filing an Appeal of Right

A claim of appeal must conform to the requirements of MCR 7.104(C)(1), except that the party aggrieved by the Secretary of State’s decision is the appellant. MCR 7.120(B)(2)(a).

“The claim of appeal must:

(i) state the appellant’s full name, current address, birth date, and driver’s license number;

(ii) state ‘[name of appellant] claims an appeal from the decision on [date] by the Secretary of State’; and

(iii) include concise statements of the following:

[A] the nature of any determination by the Secretary of State;

[B] the statute authorizing the Secretary of State’s determination;

[C] the subsection of MCL 257.323 under which the appeal is taken; and

[D] the facts on which venue is based.”⁴ MCR 7.120(B)(2)(b).

In addition, the claim of appeal must be signed and dated by the appellant or the appellant’s attorney as provided in MCR 7.104(C)(3). MCR 7.120(B)(2)(c). The appellant must attach a copy of the determination from which the appeal is taken and any affidavits supporting the claim of appeal. MCR 7.120(B)(2)(d).

B.Stay

“The filing of a claim of appeal or an application for late appeal does not stay enforcement of the Secretary of State’s decision or order.” MCR 7.120(D). However, “[t]he appellant may file for a stay of enforcement under MCL 257.323a,” and “[t]he Secretary of State may file a motion challenging the stay.” MCR 7.120(D). The appellant must serve a copy of the order granting or denying the request on the Secretary of State. Id.

C.Stipulations

“The parties may stipulate regarding any issue on appeal or any part of the record on appeal if the stipulation is embodied in an order entered by the court.” MCR 7.120(E).

D.Hardship Review Hearing—§ 257.323(3)

“The court may require briefs and may enter an order setting a briefing schedule.” MCR 7.120(F)(1). The court must schedule a hearing under MCL 257.323(2). MCR 7.120(F)(2). “Except as otherwise provided in [MCL 257.323], 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 [MCL 257.322] or [MCL 257.625f] or the driving record created under [MCL 257.204a] for a statutory legal issue[.] . . .” MCL 257.323(4).

Subject to the restrictions in MCL 257.323(3), “[t]he court may affirm, modify, or set aside”⁵ the SOS’s decision after hearing testimony and examining all the facts and circumstances related to the decision if the decision was made under:

•physical or mental disability, MCL 257.303(1)(d);

•unsafe driving, MCL 257.320;

•driving with a suspended license, MCL 257.904(10)-(11);

•driving in violation of a probationary condition, MCL 257.310d; or

•a first violation of MCL 257.625f (refusal to submit to a chemical test under the implied consent statute). MCL 257.323(3).

The court “may determine that the petitioner is eligible for full driving privileges or, if the petitioner is subject to a revocation under [MCL 257.303], may determine that the petitioner is eligible for restricted driving privileges.” MCL 257.323(4). See MCL 257.323c and MCL 257.323(4)-(8) for more information on ordering the SOS to issue a restricted license.

MCL 257.323a(1) provides in relevant part:

“[T]he court may enter an ex parte order staying the suspension or revocation subject to terms and conditions prescribed by the court until the determination of an appeal to the secretary of state or of an appeal or a review by the circuit court[.]”

However, the court is not authorized to enter an ex parte order staying a denial, suspension, or restriction on the basis of hardship. MCL 257.323a(2).

E.Review of Secretary of State’s Determination—§ 257.323(4)

In reviewing a determination of the SOS resulting in a denial, suspension, restriction, or revocation of driving privileges, the court “may determine that the petitioner is eligible for full driving privileges or, if the petitioner is subject to a revocation under [MCL 257.303], may determine that the petitioner is eligible for restricted driving privileges.” MCL 257.323(4).

“Unless otherwise ordered, the parties must file briefs complying with MCR 7.111.” MCR 7.120(G)(1). The court must schedule oral argument if a party makes a request in accordance with MCR 7.111(C), “unless it concludes that the briefs and record adequately present the facts and legal arguments, and the court’s deliberation would not be significantly aided by oral argument.” MCR 7.120(G)(2).

Before setting aside the Secretary of State’s determination, the court must either make a determination that the petitioner is eligible for full driving privileges according to the criteria set out in MCL 257.323(4)(a)⁶, or make a determination that the petitioner is eligible for review of a revocation or denial under MCL 257.303 or eligible for restricted driving privileges according to the criteria set out in MCL 257.323(4)(b). “Except as otherwise provided in [MCL 257.323], in reviewing [the Secretary of State’s] determination, . . . the court shall confine its consideration to a review of the record prepared under [MCL 257.322 or MCL 257.625f] or the driving record created under [MCL 257.204a] for a statutory legal issue[.]” MCL 257.323(4); see also MCR 7.120(G)(3). “Judicial review of an administrative licensing sanction under [MCL 257.303] must be governed by the law in effect at the time the offense was committed or attempted.” MCL 257.320e(6).

If the court determines that the petitioner is eligible for restricted driving privileges under MCL 257.323(4)(b), the court must issue an order that contains certain information set out in MCL 257.323(5)(a)-(e), including “[a] requirement that each motor vehicle operated by the petitioner be equipped [(at the petitioner’s expense)] with a properly installed and functioning ignition interlock device for a period of not less than 1 year before the petitioner will be eligible to return to the secretary of state for a hearing.” MCL 257.323(5)(b). The court must also notify the secretary of state of its determination that a petitioner is eligible for restricted driving privileges through the issuance of an order under MCL 257.323(5). MCL 257.323(8). Additionally, if the petitioner intends to operate a vehicle owned by his or her employer, the court must notify the employer of the petitioner’s obligation under MCL 257.323(5)(b) to operate a vehicle only if it is equipped with an ignition interlock device. MCL 257.323(6).⁷ The court does not “retain jurisdiction over a license issued under [MCL 257.323].” MCL 257.323(8).