The clear and convincing standard is the burden of proof that you must overcome in order to win your license restoration hearing. Your testimony and documentary evidence must establish by clear and convincing evidence that any alcohol problem is under control and likely to remain that way.
Since you have been convicted of multiple drinking and driving offenses, the hearing officer, through the Secretary of State, starts with the presumption that you have a problem with alcohol. Since you have had 2 offenses within 7 years or 3 within 10 years, factually speaking alcohol has indeed caused you a problem because you have lost your license.
The hearing officer will not grant you driving privileges until you show by clear and convincing evidence that you have been alcohol free for a period of 12 months as required by the administrative rules. Administrative Rules. You must prove, by “clear and convincing evidence” that your alcohol problem is under control and will stay that way.
Clear and Convincing Standard of Proof Explained
The “clear and convincing evidence” burden of proof is used in courts quite frequently. The standard is used in civil suits, administrative hearings (license restoration hearings) and habeas corpus claims. People who confront a “clear and convincing evidence” standard must prove that it is “substantially more likely than not” that their assertions are true. In the license restoration hearing then, which is an administrative hearing, you must show that your sobriety is “substantially likely” to be true.
While the clear and convincing evidence standard is used in many courts, most jurisdictions do not explain that standard clearly. Consider the following. Plaintiffs who have to meet the lowest standard of proof, that is, by a “preponderance of the evidence” must show that their claims is 51% more likely than the 49% of the defendant’s case. In criminal prosecutions, a prosecutor must prove the case to a jury beyond a reasonable doubt. This is the most difficult burden to overcome. In essence, the prosecutor must prove as near to 100% as possible. There is no such percentage for the clear and convincing standard.
Based on the preceding paragraph, “clear and convincing” evidence, is evidence of far greater weight than the “preponderance of the evidence” standard. Preponderance of the evidence is sometimes called “more likely than not.” However, it is not nearly as high as “beyond a reasonable doubt.” Evidence that is ambiguous or equally supports either side’s claims does not meet the “clear and convincing” standard.
Since we have clarified the clear and convincing standard, what does it mean for you and your license restoration hearing? In essence, you must prove that it is substantially more likely true than not that your alcohol problem is under control and likely to stay that way. In even more basic terms, you will not use alcohol again.
Yes, the state wants to know that alcohol has been completely removed from your life. The SOS believes that since you have 2 or more drinking and driving offenses, you do have a problem with alcohol. Consider that the state believes that the two or more times you have been caught are not the only times you have been drinking and driving. The arrests happen to be the only times you were caught. Moreover, the state wants to avoid injuries, or worse, to other drivers and yourself. Through your evidence and testimony, we must prove that you will not drink again and that you will operate a motor vehicle safely.
While the standard for the license restoration hearing is the clear and convincing evidence standard, our office wants to prove that there is no doubt that you will stay sober. If our goal is to overcome the highest burden, “beyond a reasonable doubt,” even if we come up short of that goal we should exceed the “clear and convincing” standard. While most attorneys try to achieve the “more substantially likely than not” standard, I want to prove to the hearing officer that you are beyond a reasonable doubt sober. We can and we have met that standard in our office. Our office does not want to do “just enough” to win.
Our office aims to leave no doubt that you will remain sober and drive safely. The hearing officers are acutely aware of the relapse statistics. The hearing officer knows that the odds are against you. They are skeptical when a person testifies because they know that people may not be as forthright as they should be because they want to drive legally again. So, with those facts in mind, our office believes that it is not enough to show that it is “substantially likely” that you will not drink. Again, we want to erase any doubts in the hearing officer’s mind.
To meet the highest burden, your sobriety must be detailed, clear, precise, and most importantly – truthful. Since we must overcome the burden in a license restoration case, we spend a great deal of time reviewing your documentary evidence and preparing you to testify. I know we have been extremely thorough when at the hearing, the hearing officer asks you the same questions I did at the beginning. If there is no new ground for the hearing officer to cover, we have done an outstanding job together.
The administrative rules place the clear and convincing burden of proof on you. With proper preparation you can overcome that standard and drive again. Our office wants to “raise the bar” and exceed expectations by proving that there is no doubt that you will stay sober. As I stated, our office does not want to do “just enough” to win. That is why we guarantee we will win.
You are more than welcome to call our office to discuss your license restoration process. We will take the time to answer all of your questions.
Any consultation, either by phone or by appointment is free of charge.
You can call us 24-7/365.
We have weekend and evening appointment availability.
We have flexible payment plans.
If you want to get back on the road, give us a call.
JAMES E. CZARNECKI II (586) 718-2345
GENEVIEVE L. TAYLOR (586) 350-6044