ROBERT RAYMOND BEAMAN V SECRETARY OF STATE
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT RAYMOND BEAMAN,
UNPUBLISHED
February 19, 2004
Petitioner-Appellee,
v
No. 245036
Macomb Circuit Court
LC No. 02-003636-AL
SECRETARY OF STATE,
Respondent-Appellant.
Before: Cooper, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
Respondent appeals by leave granted from the circuit court order reinstating petitioner’s
driver’s license without restrictions. We reverse.
Petitioner was represented by counsel when he appeared for an administrative hearing
before respondent Secretary of State, Driver’s License Appeal Division on June 20, 2002.
Before hearing officer Jones, respondent testified that he had not consumed an alcoholic
beverage since August 1998. To maintain sobriety, he initially attended individual counseling
sessions and attended Alcoholics Anonymous (AA) meetings twice weekly. After a two-year
period, he was discharged from therapy and did not “feel the need to go to an A.A. meeting.”
Petitioner testified that he changed his actions to maintain sobriety. He stopped socializing with
the same group of people, stopped engaging in the same activities, and derived support from his
sponsor and childhood friend, Ron Urbanczyk. Respondent submitted letters from Urbanczyk,1
his girlfriend, Denise Rekowski, and another childhood friend Charles Shereda,2 to address his
1
Petitioner testified that he stopped associating with the same group of people and stopped
engaging in the same activities to maintain sobriety. However, the letter from Urbanczyk
contradicted that testimony, by providing: “We still participate in the same activities with the
same people as we always did, but we both do them soberly.”
2
The letter from Shereda indicated that he only saw petitioner a couple of times a month.
Although Shereda’s letter did not set forth any qualifications regarding his assessment of
alcoholism, his letter provided: “In regards to his treatment, I know [petitioner] has been
required to attend many Alcoholics Anonymous meetings over the past several years. I don’t
believe these meetings have been overly helpful, specifically because I do not believe he should
(continued…)
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sobriety. Although respondent once had an interlock device on his car,3 he did not have one at
that time because he was waiting for the outcome of this hearing. When asked about an interlock
report for the period when he did have one on his vehicle, the following colloquy occurred:
Q [Hearing Officer]. Would you have an interlock report to cover that period of
time with you today?
A [Petitioner]. No, I don’t have it with me today.
Q [Hearing Officer]. Do you have one at all?
A [Petitioner]. Yes. I have one at home.
Q [Hearing Officer]. That covers that period of time?
A [Petitioner]. Yes. Up until I went to see the judge.
Q [Hearing Officer]. Is there some reason why we don’t have that today?
A [Petitioner]. No. No reason. I just – I totally forgot about it. I didn’t think
you needed it.
Q [Hearing Officer]. That’s the whole (inaudible) about this hearing. About the
interlock.
The hearing officer agreed to allow petitioner to fax the interlock report within the next two
days. Petitioner testified that he had no violations on the interlock when he was using the device.
Petitioner acknowledged that, during his last attempt to obtain full reinstatement of his
driver’s license, the hearing officer4 required him to submit proof of weekly participation in a
(…continued)
have ever been considered to be an alcoholic.”
3
On January 23, 2001, hearing officer Clover did not reinstate petitioner’s driving privileges.
Rather, he ordered that restrictions, including an interlock, were to continue for an indefinite
period. Petitioner filed a claim of appeal to the circuit court and obtained an unrestricted driver’s
license. This Court peremptorily reversed that determination because the circuit court did not
have jurisdiction where petitioner failed to comply with the time for filing requirements of the
statute. Unpublished order of the Court of Appeals, entered February 19, 2002 (Docket No.
238727). Apparently, petitioner removed the interlock system after obtaining relief in circuit
court and did not reinstall the interlock system when the circuit court’s order was reversed by
this Court.
4
Clover’s report also provided:
Mr. Beam should submit the following document(s) with his request for the next
hearing:
(continued…)
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structured substance abuse support group. He further stated that he did not comply with that
requirement:
Q [Hearing Officer]. I am curious to know and Hearing Officer Clover’s Order
that was issued January 23rd he did ask in terms of hearing evidence or
documentation that you do have proof of continuous participation in a
structured substance abuse support group at least on a weekly basis and from
what I’m hearing today from your testimony you have not continued with that.
A [Petitioner]. No, I haven’t been attending A.A.
Q [Hearing Officer]. Uh-huh. And your reason, again, is?
A [Petitioner]. I don’t feel the need that I need to.
Q [Hearing Officer]. Even though it was ordered and the documentation asked
for?
A [Petitioner]. (No oral response.)
***
Q [Hearing Officer]. And when was your last meeting, sir?
A [Petitioner]. I am not even sure.
Q [Hearing Officer]. Do you want to take a good guess? Estimated guess –
educated guess.
A [Petitioner]. Around (inaudible) oh, probably October.
(…continued)
An Interlock Final report,
1) a current substance abuse evaluation from a certified substance abuse
counselor,
2) current, dated community proofs to verify the Petitioner’s claims of abstinence
from all substances from a minimum of three sources who know the Petitioner’s
drinking and substance use habits, who can attest to the Petitioner’s length of
abstinence, indicate how they know this information, how often they see the
Petitioner, and indicate their address and a return phone number,
3) proof of continuous participation in a structured substance abuse support group
at least once weekly. [Emphasis in original.]
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Q [Hearing Officer]. Of last year.
A [Petitioner]. Yes.
Q [Hearing Officer]. October 2001. You said that Mr. Urbanczyk is pretty much
considered you’re A.A. sponsor. Is he in the A.A. program too?
A [Petitioner]. He hasn’t been attending –
Q [Hearing Officer]. Okay.
A [Petitioner]. – regularly.
Q [Hearing Officer]. How would he be considered you’re A.A. sponsor if he’s
not active in the A.A. program, sir?
A [Petitioner]. He was.
Q [Hearing Officer]. Uh-huh. Until?
A [Petitioner]. I don’t know. I don’t follow his dates. I don’t control his life. I
don’t run his life. …
At that time, the hearing officer offered to take a break to allow petitioner to compose
himself after becoming hostile, noting that legitimate questions were being asked to which
legitimate answers should be given. After the break, petitioner did not know whether he stopped
attending AA meetings before his sponsor stopped attending. When asked if he had documented
his attendance at AA meetings through October 2001, petitioner had not because he “didn’t think
[he] had to” despite the prior order of the hearing officer. Petitioner testified that he had read the
order of the prior hearing officer. When asked to name the steps of the AA program, petitioner
named one. At the prior hearing, petitioner could not recite the serenity prayer. Petitioner
testified that he had maintained steady employment since October 2001.
The hearing officer waited more than thirty days for an interlock final report, but it was
not received. Petitioner’s request for reinstatement of full driving privileges was denied, with the
hearing officer concluding:
Petitioner is appealing for a full, unrestricted driver’s license. His appeal is
denied in that he has failed to provide clear and convincing evidence to justify the
same. Firstly, petitioner did not submit a Final Report from the interlock
company verifying the fact that he had the device installed in his vehicle
beginning 01/23/2001 until the order was set aside by order of circuit court. The
circuit court order was entered approximately 12/14/2001. A continuance for
more than a month should have been ample time to secure a copy of the Final
Report. Mr. Beaman did provide a favorable substance abuse evaluation
indicating a diagnosis of Alcohol Abuse in Remission and a good prognosis and 3
testimonial letters vouching for his claim of abstinence. One of the testimonial
letters was from his current girlfriend whom he met, September 2001. On the
basis of the evidence submitted, petitioner has shown cause to continue the
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restricted license. But without the interlock report, he has now shown compliance
with the previous SOS order.
After considering the testimony, evidence and any legal arguments, and for the
reasons indicated above, the Hearing Officer finds that Petitioner failed to meet
the standards indicated above for modification of the action of the Secretary of
State.
Petitioner then filed a claim of appeal to the circuit court. Therein, petitioner asserted
that he contacted the interlock agency and was advised that “unless there is [a] problem with the
interlock device or the person that has been ordered to use the interlock has an abnormal reading,
no final report is generated.” Furthermore, it was alleged that respondent could request a final
report if it wished from the company. Therefore, respondent’s decision was “an abuse of
discretion,” violated petitioner’s “due process rights,” and was “arbitrary and capricious.”
Lastly, petitioner challenged the drug screen requirement to obtain his driver’s license as a
violation of due process. However, at the hearing, petitioner did not raise these allegations,
including the due process violation. Rather, petitioner alleged that the interlock requirement
was, essentially, a matter of “form over substance” because he had no “Breathalyzer [sic]
violations” and had not had any new contacts with criminal authorities. The circuit court granted
petitioner full reinstatement of his driver’s license, stating:
Well, I think the Secretary of State just kind of dropped the whole ball on
this thing.
***
The conclusion is without the interlock report they’re not going to give
him his license. It makes no sense to me, but a lot of things the higher ups do
make no sense to me, and it’s us low-lives [sic] that end up getting beat up. Your
motion is granted.
We granted respondent’s application for leave to appeal.
Petitioner’s license was revoked as a habitual offender, having been convicted of three
alcohol violations in a ten-year period. The Secretary of State has valid rulemaking authority,
Bunce v Secretary of State, 239 Mich App 204, 213-214; 607 NW2d 372 (1999), and a petitioner
“shall” submit the interlock report to the hearing officer at the next hearing. 1999 AACS, R
257.313a(9). The use of the term “shall” denotes mandatory, not discretionary action. Roberts v
Mecosta Co Gen Hosp, 466 Mich 57, 59; 642 NW2d 663 (2002); Browder v Int’l Fidelity Ins Co,
413 Mich 603, 612; 321 NW2d 668 (1982). “[A]n individual who files a petition for
reinstatement of driving privileges has the burden of proving by clear and convincing evidence
that he is entitled to reinstatement of his driver’s license.” Bunce, supra. The circuit court’s
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review of the hearing officer’s decision was limited to the criteria set forth in MCL 257.323(6).
See MCL 257.320e.5
MCL 257.323(6) provided:
In reviewing a determination resulting in a denial or revocation under section
303(1)(d) or (e) or 303 (2)(c), (d), or (e), the court shall confine its consideration
to a review of the record prepared pursuant to section 322 or the driving record
created under section 204a, and shall not grant relief pursuant to subsection (3).
The court shall set aside the determination of the secretary of state only if
substantial rights of the petitioner have been prejudiced because the determination
is any of the following:
(a) In violation of the Constitution of the United States, of the state constitution of
1963, or of a statute.
(b) In excess of the statutory authority or jurisdiction of the secretary of state.
(c) Made upon lawful procedure resulting in material prejudice to the petitioner.
(d) Not supported by competent, material, and substantial evidence on the whole
record.
(e) Arbitrary, capricious, or clearly an abuse or unwarranted exercise of
discretion.
(f) Affected by other substantial and material error of law.
This Court must examine the lower court’s review of agency action to determine whether the
lower court “applied correct legal principles and whether it misapprehended or grossly
misapplied the substantial evidence test to the agency’s factual findings.” Boyd v Civil Service
Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996).6
The respondent has rule making authority in this area, and the final report requirement
involving the interlock is mandatory. The fact that the requirement “makes no sense” to the trial
court is not the appropriate inquiry or standard of review. Petitioner should have known from
5
Because of legislative amendments to the statute, this provision can now be found at MCL
257.323(4), however, the law in effect at the time governs. MCL 257.320e.
6
Petitioner contends that this issue is not preserved for appellate review because the prosecutor
failed to raise these issues in the circuit court. We may address an issue that presents a legal
question where all necessary facts have been presented. Miller v Inglis, 223 Mich App 159, 168;
567 NW2d 253 (1997). All necessary facts have been preserved in the agency record, and our
review of the trial court’s decision examines application of correct legal principles. Therefore,
we may address the issue. See also MCR 7.216(A)(7).
-6-
the prior proceeding that he was required to produce this documentation in order to obtain the
relief he requested. He testified that he read the prior order written by hearing officer Clover.
Initially, he testified that he left the document at home. Ultimately, he did not fax the document
to hearing officer Jones.
Furthermore, the issue of the interlock device and any violations was not a matter of form
over substance. At the hearing before officer Clover, it was revealed that the interlock device
registered blood alcohol levels of .079 and .098 on two different occasions While petitioner
attributed those readings to malfunctioning devices which he had replaced, the hearing officer
concluded that only one reading could be attributed to machine error, therefore, an interlock
report was necessary. If the interlock device was functioning properly, the interlock device was
the only objective method for respondent to determine whether petitioner’s claim of sobriety was
accurate. The accuracy of the interlock device was particularly important where letters of
sobriety submitted by petitioner’s friends contradicted his testimony regarding his alcoholism
and his change in behavior and associates. Petitioner did not meet his burden of demonstrating
entitlement to an unrestricted driver’s license by clear and convincing evidence,7 Bunce, supra,
and the trial court erred in concluding that it could waive requirements imposed by respondent
for obtaining a driver’s license reinstatement. Id.
Reversed.
/s/ Jessica R. Cooper
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
7
We note that in the narrative portion of petitioner’s appellate brief, it is alleged that petitioner
was told that final reports are not prepared by the interlock company, but respondent could
obtain a final report if it inquired. The burden of proof of clear and convincing evidence rests
with petitioner. Bunce, supra. Petitioner did not submit an affidavit delineating those alleged
facts and did not obtain an affidavit from the representative of the interlock company that
purportedly provided that information. Thus, the burden of clear and convincing evidence is not
established by blanket assertions. Moreover, the contention that an interlock company does not
provide final reports is contrary to the administrative rules mandating such a report. Lastly,
petitioner’s contention, that the imposition of the screening requirement by hearing officer Jones
was a violation of due process, is without merit. The interlock device was an objective measure
of petitioner’s claimed sobriety. He had questionable readings which were not explained by the
interlock company through a final report. He had the system removed, but did not reinstall it
when the circuit court’s order was reversed. Under the circumstances, the exercise of discretion
by the hearing officer with regard to the requirements for the privilege of a restricted license was
proper. The hearing officer could have denied petitioner all privileges under the circumstances,
but chose to maintain restrictions.
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