Park v. Secretary of State

375 N.W.2d 747, 144 Mich. App. 227
CourtMichigan Court of Appeals
DecidedJuly 15, 1985
DocketDocket No. 77255
StatusPublished
Cited by1 cases

This text of 375 N.W.2d 747 (Park v. Secretary of State) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Park v. Secretary of State, 375 N.W.2d 747, 144 Mich. App. 227 (Mich. Ct. App. 1985).

Opinion

Gribbs, J.

Appellant, Secretary of State, revoked [229]*229appellee’s, Ronald L. Park’s, chauffeur’s license after a hearing based upon the accumulation of 12 or more points on his driving record within a 2-year period. MCL 257.320, subds (l)(d) and (2); MSA 9.2020, subds (l)(d) and (2). Park appealed to the circuit court, and the circuit court set aside the Secretary of State’s order of revocation, finding that the 2-year period used by the Secretary of State was inappropriate. The Secretary of State appeals as of right. We reverse.

A better understanding of the issue at bar is facilitated by a review of the procedures whereby the Secretary of State records and tabulates the number of points on a driver’s record. Within 15 days after a driver’s conviction for a moving violation, the magistrate or clerk of the convicting court must prepare and immediately forward an abstract of the record to the Secretary of State. MCL 257.732(2); MSA 9.2432(2). Within 10 days after receiving the abstract, the Secretary of State must record the date of conviction and the number of points assessed by the Legislature for the conviction. MCL 257.320a(l); MSA 9.2020(1X1). The Secretary of State does so by microfilming the abstract and recording the data on a computer. When a new conviction and points are entered on the computer, the computer scans the 2-year period preceding the date of the newly-entered conviction and flags a record which totals 12 or more points in that period. Thus, only the points accumulated in the preceding 2-year period from the most current conviction entered are utilized by the Secretary of State in tabulating the points on a driver’s record. If 12 or more points are charged against a driver within a 2-year period, the Secretary of State, within its discretion, may conduct an investigation and require a reexamination of that driver, and may, upon good cause, restrict, suspend [230]*230or revoke the driver’s license. MCL 257.320, subds (l)(d) and (2); MSA 9.2020, subds (l)(d) and (2).

In the case at bar, the convictions and points on Park’s driving record for the relevant period were as follows:

Date on

Abstract Date Park’s Prepared Abstract No. of Convictions by Court Microfilmed Points

7-28-80 8-18-80 8-24-80 3

10-1-80 10-20-80 10-26-80 2

I- 30-81 2-4-81 2-8-81 4

6- 12-81 6-15-81 6-28-81 2

II- 17-81 11-18-81 1-19-82 1

7- 27-82 7-29-82 8-15-82 2

[10-11-82]1 1 II-* * [1]

Although Park had already accumulated 12 points in a 2-year period upon his conviction on November 17, 1981, the computer apparently failed to refer his driving record as one which had hit the 12-or-more point limit. However, on August 24, 1982, 9 days after the microfilming of Park’s subsequent 2-point conviction on July 27, 1982, the computer referred his driving record for review by the Secretary of State’s Bureau of Driver Improvement. In reviewing his record for point accumulation, the Secretary of State utilized the 2-year period preceding the 2-point July 27, 1982, conviction which included the July 28, 1980, 3-point conviction and yielded a total of 14 points within a 2-year period._

[231]*231On September 21, 1982, the Secretary of State, pursuant to MCL 257.320(3); MSA 9.2020(3), sent to Park’s last known address notice of a driver improvement hearing scheduled on October 14, 1982, because of his acquisition of 12 or more points within a 2-year period. On September 27, 1982, the Bureau of Driver improvement discussed the case with Park on the telephone and was notified that Park had moved.2 Apparently he received a notice of hearing sometime early in November, and on November 17, 1982, the hearing was rescheduled for December 14, 1982. The hearing date was again rescheduled because of the unavailability of Park’s attorney. The hearing was finally held on January 21, 1983, at which time the Secretary of State issued on order, effective January 22, 1983, revoking Park’s chauffeur’s license.

On appeal to the circuit court, Park argued that the Secretary of State could not consider the 2-year period between July 27, 1982, and July 28, 1980, but was required to consider the 2-year period immediately preceding his receipt of notice in November of 1982. In November of 1982, the points charged against him within the preceding 2-year period, including the October 11, 1982, 1-point conviction (which was not within the 2-year period considered by the Secretary of State) would have totaled only 10 points.

In the alternative, Park argued that the 2-year period preceding the 1-point November 17, 1981, conviction (at which time he first accumulated 12 points) should be considered as the applicable 2-year period. Using this alternative 2-year period, Park argued that neither the notice he received in [232]*232early November of 1982, nor the hearing on January 21, 1983, was within a reasonable time after the November 17, 1981, conviction.

On appeal to the circuit court the Secretary of State argued that the applicable 2-year period was the period from July 28, 1980, through July 27, 1982, at which time Park had accumulated a total of 14 points — i.e. 12 or more points. The Secretary of State also contended that it acted within a reasonable time in revoking Park’s chauffeur’s license. The triggering conviction which defined the end of the 2-year period considered by the Secretary of State occurred on July 27, 1982. Notice was first sent to Park on September 21, 1982, scheduling an October hearing date. Apparently the Bureau of Driver Improvement was in contact with Park regarding the case on September 27, 1982, but he did not receive notice until early November, 1982, due to an incorrect address. The hearing was rescheduled for December and again rescheduled for January 21, 1983, in order to accommodate Park’s attorney. Park’s license was revoked the next day. On these facts, the Secretary of State argued that it took action against Park within a reasonable amount of time after the July 27, 1982, conviction.

The circuit court found that in the 2-year period prior to the July 27, 1982, conviction Park had accumulated 12 or more points and that the notice of hearing he received in early November of 1982 was within a reasonable time after the July conviction. However, the court found this Court’s decision in Pharris v Secretary of State, 117 Mich App 202; 323 NW2d 652 (1982), and its reference to the 2-year period as the "two years prior to the hearing” controlling as to the definition of the 2-year period. Pharris, supra, p 204. Relying on Pharris, the court reluctantly reversed the order [233]*233of revocation because the July 28, 1980, 3-point and the October 1, 1980, 2-point convictions fell outside the 2-year period immediately preceding the January 21, 1983, hearing and the exclusion of these convictions caused Park’s record to fall below the 12-point mark. We disagree with the circuit court’s reliance on Pharris and find it does not control the case at bar.

In Pharris, this Court held that the Secretary of State was not empowered to revoke a person’s license by merely labeling a driver with fewer than 12 points as "incompetent”. Pharris, supra, p 207. In looking at Pharris’s driving record, the Court referred to the 2-year period as the "two years prior to the hearing” and "the previous 2 years”.

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Related

Mancini v. Secretary of State
512 N.W.2d 859 (Michigan Court of Appeals, 1994)

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Bluebook (online)
375 N.W.2d 747, 144 Mich. App. 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/park-v-secretary-of-state-michctapp-1985.