Section 257.313. Standards for issuance of license.

(1) With respect to an appeal hearing that involves a review of a determination of the department which results in a denial or revocation under section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act, all of the following provisions apply:

(a)   The hearing officer shall not order that a license  be   issued  to  the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following:

(i)    That the petitioner's alcohol or substance abuse problems, if any,     are under control and likely to remain under control.

(ii)   That the risk of the petitioner repeating  his  or  her  past  abusive behavior is a low or minimal risk.

(iii)   That the risk of the petitioner repeating the  act  of  operating a

motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or

(2)(c), (d), (e), or (f) of the act is a low or minimal risk.

(iv)   That the petitioner has the ability and motivation to drive safely and within the

law.

(v)   Other showings that are relevant to the issues identified in paragraphs

(i)   to (iv) of this subdivision.

(b)   Before ordering that a license be issued to the petitioner, the hearing officer shall require that the petitioner prove, by clear and convincing evidence, that he or she has completely abstained from the use of alcohol and controlled substances, except for controlled substances prescribed  by a licensed  health  care  professional,   for  a  period of not less than 6 consecutive months or has abstained for a  period  of  not  less  than 12 consecutive months if the evidence considered at the hearing establishes that a longer period of abstinence is necessary. The evidence may include any of the following:

(i)   That the petitioner has ever submitted to a chemical test which revealed a bodily alcohol content that is not less than 2 times the level indicated in section 625a(9)(c) of the act.

(ii)    That the petitioner has 3 or more convictions for alcohol or controlled substance-related offenses.

(iii)    That the petitioner has attempted to bring his or her alcohol or controlled substance abuse problems, if any, under control, but suffered a relapse by using, on at least 1 occasion, alcohol or a controlled substance, or both, except for a controlled substance prescribed for the petitioner by a licensed health professional.

(iv)   That a substance abuse evaluation of  the  petitioner  reveals  a diagnosis of past or present alcohol or controlled substance dependency.

(v)   That the petitioner's license was previously revoked or denied under section 303 of the act because of alcohol or controlled substance convictions.

(vi)     Other showings that  are  relevant  to  the   issues  identified  in paragraphs (i) to (v) of this subdivision.

(c)   If the hearing officer determines, under subdivision  (b)   of  this subrule, that the petitioner must prove complete abstinence for a period of more than 6 months, then the hearing officer shall explain the reasons for the determination in the written order issued by the hearing officer.

(d)  The hearing officer may require that the petitioner present evidence from not less than 3 independent sources to corroborate the petitioner's behavior with respect to alcohol and controlled substances.

(e)   The hearing officer may require the petitioner to present a current urinalysis drug screen to corroborate the presence or absence of controlled substances or alcohol, or both, in the petitioner's body.

(f)   The hearing officer may require that the petitioner submit a current substance abuse evaluation on a form prescribed by the department.

(g)   The petitioner may submit any or all of the following:

(i)   Letters from other persons that document his or her behavior regarding alcohol and controlled substances.

(ii)   Proof of his or her past and current involvement with a treatment program or programs.

(iii)   Proof of his or her past and current structured support program.

(iv)   Other relevant evidence.

(h)   If the hearing officer concludes that  the  petitioner  has  met  the requirements of this subrule, then the hearing officer may order a restricted license for a period of time to be determined by the hearing officer before consideration for an unrestricted license. This subdivision does not apply if the petitioner is a nonresident seeking relief so that he or she may apply for a license in his or her home state.

(2)   If a petitioner's application for a license has been denied, or if his or her license has been revoked, under section 303(1)(e), (g), (h), (i), (j), or (k) or (2)(a), (b), or (e) or 320(2) of the act, then the hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves both of the following by clear and convincing evidence:

(a)   That the petitioner has the ability and motivation to drive safely  and within the

law.

(b)   Other showings that are relevant to the issue identified in subdivision

(a)   ) of this subrule.

(3)   If a person's license has been revoked under section 320(2) of the act, then the department shall not issue a license to the person unless the person establishes both of the following:

(a)   That the person has the ability and  motivation  to  drive  safely  and within the

law.

(b)   Other showings that are relevant to the issue identified in subdivision

(a)   ) of this subrule.

History: 1992 AACS; 1998-2000 AACS.