The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CHAD MORROW, UNPUBLISHED
December 1, 2022
Petitioner-Appellant,
v No. 358508
Wayne Circuit Court
SECRETARY OF STATE, LC No. 21-004810-AL
Respondent-Appellee.
Before: GLEICHER, C.J., and MARKEY and PATEL, JJ.
PER CURIAM.
Petitioner Chad Morrow filed a claim of appeal challenging a circuit court ruling upholding
a hearing officer’s determination that Morrow failed to meet the minimum requirements for
restoration of his driver’s license. Whether Morrow may appeal as of right from the order entered
by the circuit court presents a question we need not answer today. Because the circuit court failed
to apply correct legal principles, we treat his claim of appeal as an application and grant it. Wardell
v Hincka, 297 Mich App 127, 133 n 1; 822 NW2d 278 (2012).
The hearing examiner’s decision, which was affirmed by the circuit court, imposed two
prerequisite conditions on Morrow’s eligibility for a restricted driver’s license: production of the
presentence investigation reports (PSIRs) from his marijuana-related convictions in 2016 and
2017, and production of Morrow’s medical marijuana card. Both conditions contravene Michigan
law. Accordingly, we vacate the circuit court’s opinion and remand for further proceedings
consistent with this opinion.
I. FACTUAL AND LEGAL BACKGROUND
Morrow is considered an “habitual offender” due to two convictions for intoxicated driving
within seven years. MCL 257.303(2)(c). In 2004, Morrow’s license was suspended following his
convictions for operating while impaired by liquor and for driving while his license was
withdrawn. In January 2007, he was granted a restricted license. But in November 2007, Morrow
was involved in an accident and his license was revoked for operating while intoxicated. In
February 2016, Morrow was granted a restricted license, which required him to refrain from using
intoxicants and to only operate a vehicle equipped with a breath alcohol ignition interlock device
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(BAIID). His restricted license was revoked twice because of BAIID violations but restored in
October 2017. In 2018, Morrow’s restricted license was again suspended and subsequently
reinstated following his conviction for delivery of marijuana. In October 2018, the revocation was
reinstated following another BAIID violation.
The Legislature has created a pathway for the restoration of a revoked driver’s license,
even for habitual offenders like Morrow. Morrow filed petitions seeking restoration of his license
in 2019 and 2021; this appeal arises from the denial of his 2021 petition, which hinged on a ruling
made during the 2019 proceedings. A hearing officer appointed by the secretary of state
considered both petitions. MCL 257.322(1). Morrow bore the burden of rebutting “by clear and
convincing evidence the presumption resulting from the prima facie evidence that he or she is a
habitual offender.” MCL 257.303(4)(b), as amended by 2012 PA 498.1 He was also obligated to
meet “the requirements of the department.” MCL 257.303(4)(c). Those requirements are
contained in Mich Admin Code, R 257.313(1)(a), and include:
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 . . . .
A hearing examiner denied Morrow’s petition in 2019, and a different hearing examiner
denied his 2021 petition. At the 2021 administrative hearing, Morrow testified that he was 39
years old and had two convictions for impaired or intoxicated driving, the first in 2004 and the
second in 2007. Morrow presented a favorable substance abuse evaluation and the results of
several negative alcohol and drug tests. He admitted to having used marijuana as a teenager, and
testified that he had been sober from alcohol and marijuana for 10 years. He declared that he was
motivated to remain sober and believed that could do so in part because of this active participation
in Alcoholics Anonymous and a supportive community of friends and family.
1
MCL 257.303 was amended by 2020 PA 376, effective October 1, 2021, with only minor changes
to the language of Subsections 2 and 4.
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Morrow testified that he had a medical marijuana caregiver card from 2011 until 2017 and
operated a medical marijuana dispensary from 2015 to 2017. He was convicted by guilty plea of
two counts of delivery of marijuana to undercover police officers outside of his caregiver plan,
which he claimed arose due because of a disagreement regarding the zoning laws governing his
dispensary. Morrow attributed his BAIID violations to vehicle repair issues and denied any
elevated blood alcohol readings in 2017.
The hearing officer issued a written opinion denying the restoration of Morrow’s driving
privileges, relying in large measure on Morrow’s failure to “submits proofs of his claims as to why
he was convicted of two drug crimes (2016 and 2017), and what if any certification he held from
the State of Michigan to be involved in [the] production/distribution of cannabis.” The hearing
officer found that Morrow was “unable to meet [his] burden” of proving by clear and convincing
evidence “that he is a good risk to sustain recovery and to avoid re-offense” due to his failure to
comply “with specific evidence requirements given him in his prior hearing order.”
“The prior order,” issued in 2019, required that Morrow produce “for the next hearing”:
6) verification from the Department of Licensing and Regulatory Affairs, [LARA],
when Mr. Morrow had a medical marijuana card. An online form is available for
this.
7) a complete [PSIR] or its equivalent regarding Mr. Morrow’s drug crimes in 2016
and 2017 to provide an independent account of his offenses.[2]
After the 2021 denial of his request for license restoration, Morrow filed a petition for
review in the circuit court.3 In his circuit court pleadings, Morrow asserted that the hearing officer
abused his discretion by disregarding powerful evidence substantiating that Morrow met the
conditions for restoration of his license, and instead improperly required Morrow to submit the
PSIRs and his medical marijuana card. Morrow emphasized that he had presented clear and
convincing evidence that his alcohol and drug use disorders were in remission, an expert had
reported that he had a favorable prognosis for recovery, and that he had abstained from the use of
alcohol and marijuana since 2009, satisfying all requirements for a restricted license. The hearing
officer’s decision was not supported by competent, material, and substantial evidence on the whole
record, he contended.
In a bench opinion, the circuit court observed that the record reflected an issue regarding
whether Morrow had a medical marijuana card “as a caregiver” or “for dispensing.” The court
also noted that the 2019 hearing officer had ordered Morrow “to provide a complete [PSIR] or its
equivalent, regarding Mr. Morrow’s drug crimes for 2016, 2017.” The court summarized:
2
It appears that at the time of the 2021 hearing, Morrow produced all the other materials requested
by the 2019 hearing examiner.
3
MCL 257.323(1) provides that “[a] person aggrieved by a final determination of the secretary of
state . . . revoking, suspending, or restricting an operator’s or chauffeur’s license . . . may petition
for a review of the determination in the circuit court . . . .”
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I believe the documents indicated that the underlying criminal crime had to do with
[Morrow] selling marijuana to an undercover police officer. So, I think the - - the
point was that the hearings [sic] officer wanted to see, because of this discrepancy
in terms of whether or not [Morrow] had a marijuana - - a medical marijuana license
for his own use, as a caregiver, or as a dispensary.
The court concluded that the hearing officer’s decision to deny Morrow’s request for driving
privileges was based on competent, material, and substantial evidence and was not arbitrary or
capricious or an abuse of discretion.
Morrow claimed this appeal, contending that the hearing officer abused his discretion by
focusing on his failure to produce the PSIRs or the medical marijuana card. The PSIR could not
be produced, Morrow contends, under Michigan law. And evidence related to the issuance of a
medical marijuana card is off-limits, Morrow asserts, because the issuance of a card cannot be
used as a “sword to take negative action against a licensee.”
During oral argument in this Court, the parties were instructed to meet and confer and to
advise the Court whether they could stipulate to expand the record concerning the availability of
Morrow’s PSIRs. The parties then stipulated to the admission of an email from Michigan
Department of Corrections Regional Manager Donald Nolan stating that he was not allowed to
release a copy of a PSIR “except as allowed by statute.” The statute Nolan cited in his email, MCL
791.229, prohibits the release of “all records and reports of investigations made by a probation
officer, and all case histories of probationers,” except to “[j]udges and probation officers” and
others named in the statute, none of whom include Morrow or Secretary of State hearing officers.
II. ANALYSIS
The hearing officer erred by conditioning Morrow’s license restoration on production of
his PSIRs and his medical marijuana card. As the parties now agree, Morrow cannot produce his
PSIRs to a hearing officer. Because the PSIRs are not subject to production, the hearing officer
improperly relied on Morrow’s alleged failure to produce it as a reason to deny license restoration.
As noted above, MCL 257.323(1) permits “[a] person aggrieved by a final determination
of the secretary of state denying the person an operator’s or chauffeur’s license . . . or revoking,
suspending, or restricting an operator’s or chauffeur’s license” to petition for a review of that
determination in the circuit court. The scope of the circuit court’s review is described in MCL
257.323(4) as follows:
Except as otherwise provided in this section, in reviewing a determination
resulting in a denial, suspension, restriction, or revocation under this act, the court
shall confine its consideration to a review of the record prepared under [MCL
257.322 or MCL 257.625f] or the driving record created under [MCL 257.204a]
for a statutory legal issue, and may determine that the petitioner is eligible for full
driving privileges or, if the petitioner is subject to a revocation under [MCL
257.303], may determine that the petitioner is eligible for restricted driving
privileges. The court shall set aside the secretary of state’s determination only if 1
or more of the following apply:
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(a) In determining whether a petitioner is eligible for full driving privileges, the
petitioner’s substantial rights have been prejudiced because the determination is
any of the following:
(i) In violation of the Constitution of the United States, the state constitution
of 1963, or a statute.
(ii) In excess of the secretary of state's statutory authority or jurisdiction.
(iii) Made upon unlawful procedure resulting in material prejudice to the
petitioner.
(iv) Not supported by competent, material, and substantial evidence on the
whole record.
(v) Arbitrary, capricious, or clearly an abuse or unwarranted exercise of
discretion.
(vi) Affected by other substantial and material error of law.
Our review of the circuit court’s decision is even more narrowly circumscribed:
[W]hen reviewing a lower court’s review of agency action this Court must
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. This latter standard is indistinguishable from the clearly erroneous
standard of review that has been widely adopted in Michigan jurisprudence. As
defined in numerous other contexts, a finding is clearly erroneous when, on review
of the whole record, this Court is left with the definite and firm conviction that a
mistake has been made. [Boyd v Civil Serv Comm, 220 Mich App 226, 234-235;
559 NW2d 342 (1996).]
Our interpretation and application of statutory provisions is de novo, without deference to the other
jurists who have considered this case. United Parcel Serv, Inc v Bureau of Safety & Regulation,
277 Mich App 192, 202; 745 NW2d 125 (2007).
Morrow’s substantial rights were prejudiced by the hearing officer’s insistence that he
produce the PSIRs, because a statute prevented him from complying with this request. In affirming
that decision the circuit court applied an incorrect legal principle: that Morrow could produce the
PSIRs. And the hearing officer committed a congruent clear factual error in finding that Morrow
had deliberately refused to produce the document.4
4
We respectfully disagree with our dissenting colleague’s suggestion that a police report is
“equivalent” to a PSIR. A police report is generated to support an arrest. Generally, a police report
does not include information contrary to a single police officer’s perception of events. A police
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This was not the only error committed by the hearing officer and the circuit court. In
People v Thue, 336 Mich App 35, 48; 969 NW2d 346 (2021), this Court explained that the
Michigan Medical Marijuana Act, (the MMMA), MCL 333.26421 et seq., includes an “immunity”
provision, which provides, in pertinent part, that
A qualifying patient who has been issued and possesses a registry identification
card is not subject to arrest, prosecution, or penalty in any manner, or denied any
right or privilege, including, but not limited to, civil penalty or disciplinary action
by a business or occupational or professional licensing board or bureau, for the
medical use of marijuana in accordance with this act . . . . [MCL 333.26424(a)
(emphasis added).]
In Thue, 336 Mich App at 47, we applied this immunity provision to prohibit the revocation of
probation based on MMMA-compliant use of marijuana. Here, Morrow’s medical marijuana card,
regardless of its contents, cannot be used to deny him an opportunity for the restoration of driver’s
license.
These legal errors require us to vacate and remand to the circuit court for reconsideration
of Morrow’s appeal based on the legal principles set forth in this opinion. We do not retain
jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Sima G. Patel
report is drafted to support a finding of probable cause for arrest. A PSIR is prepared by a
probation officer, and often includes a defendant’s version of what led to his or her arrest, and a
fuller discussion of the background information. Most critically, at sentencing a defendant has an
ability to challenge the factual information contained in a PSIR. No such ability exists with respect
to a police report. That said, our holding does not constrain the circuit court from seeking a true
“equivalent” to a PSIR if such a document exists.
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