McMillan v. Secretary of State , 155 Mich. App. 399 ( 1986 )

155 Mich. App. 399 (1986) 399 N.W.2d 538

McMILLAN
v.
SECRETARY OF STATE

Docket No. 88571.

Michigan Court of Appeals.

Decided October 8, 1986.

Willaim B. Davis, for petitioner.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Arthur E. D'Hondt, Assistant Attorney General, for respondent.

Before: CYNAR, P.J., and T.M. BURNS and M.E. KOBZA,^[*] JJ.

PER CURIAM.

Respondent appeals from an order of the circuit court granting petitioner a restricted license. We reverse and reinstate the decision of the hearing officer.

The record reveals that petitioner's driver's license was suspended from September 29, 1982, through December 29, 1982, after petitioner refused to submit to a chemical test on August 23, 1982. On April 18, 1985, petitioner was involved in an automobile accident in which his vehicle struck a parked vehicle. Apparently, petitioner was informed shortly thereafter that his refusal to submit to a chemical test on the date of that accident would result in a suspension unless he requested a hearing within fourteen days. He requested a hearing, but failed to appear. His license was thereafter suspended from July 7, 1985, through July 7, 1986.

On September 24, 1985, petitioner filed a petition in circuit court requesting a restricted license, alleging that he otherwise had no means of getting to and from work. A hearing on that petition was held on October 21, 1985. Petitioner testified that his wife could not drive, that there was no public transportation, and that he had no other relative or fellow employee who could drive him to and from work. When questioned whether he had in fact refused a Breathalyzer test on April 18, 1985, petitioner responded that he could not remember refusing the Breathalyzer test. Petitioner testified that the impact of the collision caused him to go through the windshield of his automobile. Because he sustained head injuries, petitioner initially intended to contest the validity of his refusal, but "cancelled" his hearing because "I had to have apparently a real strong statement from the doctor ... that I had head injuries and so forth."

Relying on petitioner's testimony that he could not remember refusing the chemical test, the circuit court judge issued petitioner a restricted license for driving to and from work.

Respondent appeals, alleging that the circuit court had no discretion to order a restricted license to a person who has refused a Breathalyzer test twice in seven years and contending that petitioner's failure to appear at the July 2, 1985, hearing waived his right to circuit court review of whether he in fact refused a chemical test on April 18, 1985.

Petitioner contends that the circuit court "may take testimony and examine into all the facts and circumstances incident to the... suspension ... of the person's license" and thereafter "affirm, modify, or set aside the restriction, suspension, revocation, or denial." MCL 257.323(3); MSA 9.2023(3). In the alternative, petitioner contends that the circuit court's wide equitable powers enables the circuit court to review agency determinations.

A person who refuses to submit to a chemical test may request a hearing, which is limited to a determination of the following issues: (1) whether the officer had reasonable grounds to believe the driver committed the crime specified in MCL 257.625c(1); MSA 9.2325(3)(1); (2) whether the person was arrested for the crime; (3) whether the driver unreasonably refused to submit to the test upon the officer's request; and (4) whether the driver was advised of his or her rights concerning the chemical test. After the hearing, the Secretary of State may suspend the driver's license for six months or, for a second refusal within seven years, for one year. MCL 257.625f(2), (4); MSA 9.2325(6)(2), (4).

Circuit court review of the hearing officer's determination is provided for by statute, but is limited to whether the hearing officer correctly determined the above four issues or whether a restricted license should be provided. MCL 257.323; MSA 9.2023. A restricted license, however, is prohibited when the petitioner's license has been suspended twice within seven years. MCL 257.323c(2); MSA 9.2023(3)(2); Kester v Secretary of State, 152 Mich. App. 329; 393 NW2d 623 (1986). Petitioner's citation to MCL 257.323(3); MSA 9.2023(3) is inapposite. By its express terms, that subsection has no application to determinations resulting in a denial or suspension for failure to submit to chemical tests.

Did the circuit court, then, have the power to grant petitioner a restricted license based on his testimony that he could not remember refusing a chemical test?

Initially, we reject petitioner's contention that the circuit court's equity powers permit circuit court review outside the statute. An appeal to equity is not alone and by itself a sufficient implication of equity jurisdiction. Love v Wilson, 346 Mich. 327; 78 NW2d 245 (1956). Nothing in petitioner's petition below and nothing cited by petitioner on appeal states grounds for equity jurisdiction.

Otherwise, circuit court review is limited to review of the record prepared at the hearing held pursuant to the driver's request. MCL 257.323(4)(a), 257.625f(2), (3); MSA 9.2023(4)(a), 9.2325(6)(2), (3). No record of the hearing was available for circuit court review in the instant case. As such, circuit court review was precluded and modification of respondent's order of suspension by trial de novo was improper.

We reject petitioner's contention that respondent had the duty to produce the record for circuit court review. While respondent would have had a duty to make a record and produce that record for circuit court review had a hearing been held pursuant to petitioner's request, MCL 257.625f(3); MSA 9.2325(6)(3), we regard petitioner's failure to appear for the hearing to be in the nature of a default, i.e., an admission of the facts contained in the peace officer's report made pursuant to MCL 257.625d; MSA 9.2325(4) of which the driver received notice from the Secretary of State pursuant to MCL 256.625e; MSA 9.2325(5).^[1] No record of proceedings scheduled pursuant to a driver's request for a hearing need be made when the driver fails to appear for the hearing and circuit court review is thereafter precluded. It must be remembered that the administrative hearing at issue is not a criminal proceeding. Had petitioner failed to request a hearing, suspension would have been automatic. MCL 257.625f(1); MSA 9.2325(6)(1). We can not believe that the Legislature intended a different result where, without a request for adjournment, a driver fails to appear for his scheduled hearing.

The order of the circuit court granting petitioner a restricted license is reversed and we remand for reinstatement of the hearing officer's decision.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Petitioner makes no claim that the officer who filed his report of defendant's refusal with the secretary failed to appear at the scheduled hearing. See 1979 AC, R 257.37(3).