Of course, it goes without saying that no one wants to face a drunk driving charge. I have often called a DUI "an accident of geography" because absolutely no one expects to go out and get a DUI in the first place, much less plans on where to get it. Sometimes, you wind up driving to different and distant places to meet up with others, and might, for example, drive all the way from Westland to Novi to Rochester to New Baltimore. You could get pulled over anywhere along the way, and given the (somewhat unlikely) route used in this illustration, you could find yourself in either one of the toughest or the most "forgiving" (as in "lenient") jurisdictions in the Detroit-area, or anything in-between.

The point is that a DUI just happens where it happens. No one plans any part of it, although some would argue that a rather distinct lack of planning is the reason it happens in the first place. We'll let MADD deal with that part of thing; for now, we'll just stick to talking about "Shelby."

If you were going to plan to get a DUI, however, you'd certainly want to wind up in a lenient jurisdiction where the penalties weren't so severe and the Judge was nice. Shelby is that place.

Let's begin with the Judge. Having come to the Bench after working for a long time in private practice, Judge Douglas Shepherd brings a real world understanding to his position. This is hugely important, because it's a lot easier to understand people, if you're sitting on one side of the table, when you've sat on the other side, as well. Judge Shepherd, having been in private practice, knows that people charged with a DUI are often people who have made a one-time mistake, or even made the same mistake a second time. He knows that a DUI charge cuts across all groups, and that DUI defendants are your family, friends, neighbors and co-workers. Whatever else, we can't simply describe those charged with a DUI as "them." This is sometimes what the more judgmental amongst us do; these are also usually the first people to change their tune when it happens to them, or someone close to them. We think of that kind of judgmental person as being on a "high horse."

Not so with Judge Shepherd. He is, first and foremost, a decent and likeable man. You can't miss this. Look, it's no secret that when you encounter someone who is a real jerk (think of another 5-letter word that begins with the letter "a" and rhymes with "eggroll") it's a big turn off. Power is best used by those who use it the least, and that describes Judge Shepherd. I've been a regular in his Court since his election in 2000, and never once have I ever seen him make a case about him. Instead, he directs his attention to the matter before him, where it belongs. Intelligent and compassionate, he runs an efficient Court that pays homage to the first rule of everything: Common sense.

There is a lot more to this, of course. Nothing about a DUI case can really be "summarized," but the fact of the matter is that where your DUI occurs is one of the single biggest predictors of how it will play out. If you call my office about a DUI charge, one of the very first question's we'll ask is "where?" If one of my legal assistants mentions a new DUI appointment that they made for me, the first question I'll ask is "where?" "Where" matters, and, in large part, determines how easy or rough your case will be. We could spend days talking about evidence and dismissals and field sobriety tests and whatnot, but overriding all of that is where your case is being decided, and if it's in Shelby, at least you wound up in one of the very best (as in nicest) Courts anywhere in the Tri-County area. That doesn't mean that the Judge is going to apologize for the inconvenience to you and throw gift certificates at you, but it also means that you're not going to be dragged out of Court in handcuffs thinking you were unfairly pounded, either.

There is, of course, a lot to a DUI traffic stop. I've written rather extensively about many, if not most, aspects of the traffic stop. The fact is that you could fill several volumes about the various facets of being pulled over for suspected drunk driving. To keep our mission manageable here, and to keep your attention, as well, we'll limit our ambitions a bit and take a brief look at one small part of a DUI traffic stop and the field sobriety tests, the horizontal nystagmus gaze (HGN, or as often referenced by the police in the Metro-Detroit area of Macomb, Oakland and Wayne Counties, the "horizontal NSG") test. This is the test where the officer asks a person to keep his or her head still, and follow an object (often a finger, or a pen) using only their eyes. This test has a remarkable capacity to detect that a person is impaired by alcohol.

The HGN test measures how smoothly a person's eyes follow an object moved from one side of their field of vision to the other. As it turns out, absent any of a few particular medical conditions, a sober person's eyes will follow such an object rather smoothly, like a perfectly round marble rolling on a piece of glass. Alcohol affect the movement of the eyes, and as a person becomes more inebriated, his or her autonomic motor functioning likewise become impaired, meaning that they eyes will "jump" (kind of like that same marble being rolled over a sheet of grainy sand paper) and not track smoothly. This is completely outside of a person's conscious control, and no matter how sober or drunk someone may become, they never notice this from their own perspective.

It would be impossible to appropriately summarize the science behind the HGN test beyond pointing out that even the American Optometric Association has passed a resolution endorsing it as an effective test for alcohol impairment. The HGN test is generally believed to be the most reliable of all field sobriety tests. The flip side is that it is also almost generally impossible to independently verify, leaving proof of a person's performance on the HGN test as almost entirely a matter of believing what the police officer says (or writes in his or her report), or not. Not every police officer can administer an HGN test, however. In order to do so, the officer has to be specially trained to administer it. Given it's high degree of reliability and ease of administration at the side of the road, it's little wonder that more and more police officers are receiving this training.

The few exceptions to the scientific reliability of the HGN test as evidence of alcohol impairment don't often occur in real life DUI traffic stops. If you have a brain tumor (and then you'd have to prove that it's the kind that would affect your performance on an HGN test), a brain disease, or an inner ear disease, then this should be explored as a defense. Most conditions that would affect a person's performance on an HGN test would likewise prevent them from driving in the first place. Even then, the likelihood that such a person would be driving, and also drinking (remember, it's not illegal to drink and drive, it's only illegal to drink too much and then drive) is rather remote.

For a moment, let's skip all the lawyer-talk exceptions and exclusions and limitations and focus on the "real world." In the real world, if you're pulled over, and the police officer has you out of the car taking field sobriety tests, it's rather likely you've had something to drink. The National Highway Traffic Safety Administration has sanctioned, or validated only 3 field sobriety tests: The HGN, the heel to toe walk, and the standing leg raise. While many police officers do alphabet and counting tests, neither of them, nor any other test beyond the 3 approved by the NHTSA, really have any real legal weight.

While the landscape of DUI lawyers is full of great salespeople, the landscape of real life DUI cases tells a very different story. In 2011, there were 54, 291 DUI and related arrests in Michigan. Out of ALL of those, only 95 resulted in a "not guilty" verdict after a full-blown trial. This seems to be painfully overlooked by those attorneys who appeal to potential clients by focusing on what "could be" wrong with any given DUI case.

Let's put that in perspective. If you wound up with a disease and discovered that of the 54, 291 cases diagnosed last year, only 95 people were cured, and all the rest died, you'd have to start thinking about making some final arrangements. In terms of success, 95 out of 54, 291 equal .17%. Put the other way, that means that in 2011, of the 54, 291 people arrested, for some kind of DUI, 99.83% did not win by going to trial. There wasn't something "wrong" enough with those cases to convince a jury.

Yet for all that doom and gloom, there is some good news. When we examine the video from a DUI traffic stop (in this article, we're concerned with the HGN test, but to put things in perspective, the first thing anyone should be looking at in any such case is the reason, meaning probable cause, for the stop) and focus on the field sobriety tests, particularly the HGN test, it is important to remember that, while the video may show a person doing well (or not) on the heel to toe and standing leg raise tests, it almost never shows how well or poorly a person did on the HGN test. There is no way a "dash-cam" mounted inside a police car will ever be able to focus on a person's eyes. This means that, at the end of the day, in almost all cases, the best evidence, and really the only evidence of a person's performance on an HGN test is limited what the officer writes in his or her report.

This tends to become pretty worthless, however, if the police car video shows Dan the Driver unable to walk heel to toe, or to do a standing leg raise without flailing about. Here, also, is where things like an alphabet or counting test can help the police. If Dan the Driver is slurring his words, or is demonstrably unable to follow clear and simple directions ("count backwards from 96 and stop at 87"), then it only makes him look all the more drunk. We can debate the technical legalities of this all day long, but this explains why, in the real world (which is exactly where anyone's DUI will be decided) out of over 54,000 DUI arrests in 2011, only 95 resulted in a verdict of "not guilty."

It is important to note that the HGN test is not used to show that a person was drunk, or how drunk they were. Instead, the HGN is used for the purpose of showing that the police officer did, in fact, have probable cause to arrest someone for drunk driving (and thereafter administer a breath test). This means that any good DUI lawyer is still going to carefully review the whole case to make sure there was sufficient probable cause to make the traffic stop in the first place, and otherwise make sure that there is legally admissible and sound scientific evidence (meaning breath or blood test results) that a person was actually over the limit at the time they were driving. To put it another way, the HGN test can support your arrest, but a lot more is needed for a DUI conviction.

The HGN test is a powerful field sobriety testing tool. If you've had to take it, then you know that it almost always precedes a ride to jail. While the test itself cannot be used to prove that a person was over the limit, it can be and is used to establish probable cause for a DUI arrest. There is a lot to all of this, and this article can't even being to scratch the surface beyond perhaps throwing some light upon why this test is used, and the role it plays in a DUI charge.

In just a few days (May of 2013), the American Psychiatric Association will release the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th edition). This will replace the current edition (DSM-IV TR) and will change the entire landscape of alcohol and addiction diagnosis and treatment. The DSM is the "bible" of diagnoses. If a person is diagnosed as having anxiety disorder, autism, bi-polar disorder, depression or even schizophrenia, it is because he or she meets the specific criteria set forth in the DSM.

The DAAD requires a DSM diagnosis as part of the Substance Abuse Evaluation form. Only a trained professional can make such a diagnosis. As it stands now, the Substance Abuse Evaluation form has a section that requires the evaluator to provide a DSM-IV diagnosis. That's perfectly fine, but it won't be once the new manual comes out in the coming days. Once the new manual is published, current diagnoses of alcohol abuse and alcohol dependence won't exist anymore.

This is worth repeating: The DSM-5 is expected to eliminate the diagnoses of alcohol abuse and alcohol dependence. In their place, a new category, called alcohol use disorder, will take over. This is really heavy stuff, and I will likely examine the implications in upcoming articles. This is, of course, very relevant to me, not only as a lawyer, but also as someone who formally studies, at the post-graduate University level, the diagnosis and treatment of alcohol and substance abuse issues. For now however, we'll just focus on how the DAAD missed this, and what that means.

To put this in perspective, one of many other anticipated changes in the DSM-5 will be the elimination of Asperger's syndrome as a separate diagnosis. Somewhat related to autism, anyone who has a child receiving treatment for Asperger's syndrome will suddenly find that their insurance company will no longer pay for such treatment once the new manual is published. After all, how can you be covered for a condition that no longer exists? Of course, most of those with a diagnosis of Asperger's will be re-diagnosed under the expanded continuum of Autism disorders, but the point is that, until that's formally done, there will be no insurance coverage.

In the same way, we may expect some fallout for anyone receiving outpatient treatment for alcohol abuse when that diagnosis is eliminated. Sure, such a person may very well be thereafter diagnosed as having "alcohol use disorder," but the one thing we can say for sure is that once the DSM-5 comes out, "alcohol abuse" will no longer exist. How then, can the state ask for and make legal decisions based upon clinical criteria that no longer exist?

And the state just ignored this.

So what does all this mean?

It means that, on the day the DSM-5 is published, the DAAD's Substance Abuse Evaluation form will be asking for a diagnosis that no longer exists.

This probably sounds worse than it is, because it 's not like any evaluator is going to forget, overnight, how they've been doing things since 1994 (the DSM-IV was revised in 2000). Even so, as these professionals implement the profound changes in diagnostic criteria, they'll have to find a way to reconcile the way things are supposed to be done with the formally out-of-date way the state will still require.

Because of my involvement in formal, University post-graduate level studies of alcohol and addiction studies, and particularly the diagnosis and treatment of alcohol and drug problems, I will necessarily have one foot in each world. As a Michigan driver's license restoration lawyer, this means I will be fluent in the language of diagnosis, both old and new. This should be of particular interest to anyone looking to hire a driver's license restoration attorney. Eventually, the state will catch up. Yet it should not be lost upon the reader that if anyone drives a car with a license plate or tab that's even one day out of date, he or she can be charged with and convicted of a crime. Here, however, the state can do (or rather just not do) whatever it likes, rather unlike its citizens.

This new form will undoubtedly cause problems for anyone trying a license appeal on his or her own. While only a few pages long, it would take several installments to cover the requirements and potential pitfalls of this new form, so I'll save a more in-depth analysis for a potential future series of blog articles. For now, we can at least look at a few key points.

Having already worked with this new form for nearly a month, I can safely say that it represents a stunning achievement in lack of intelligent thinking. While I can understand that there may be someone simple and uniformed enough to draft something rather dumb, I am, frankly, surprised that anyone reviewed it and approved a form this idiotic.

In one place, the form asks for beginning and ending dates for any term or probation or incarceration a person had as a result of a DUI conviction. A few sections down, it asks. "Have you ever abstained from alcohol or controlled substances while incarcerated, on probation or on parole?" We all know plenty of people drink while on probation, but I'm not aware of any Jail that serves alcohol. Are you kidding me? Who is the genius responsible for that question?

In another place, it asks about the date a person last used alcohol. It goes on to ask for the "Name of alcohol consumed." This might seem to mean "what kind" of alcohol, but only a few sections earlier, as it asks about a person's former drinking habits, it specifically requests the "kind" of alcohol a person used to drink, and how often. Already, I'm seeing people describe the night of their last drink as having been a combination of beers and shots and/or mixed drinks. For many people with a few years of sobriety to their credit, thinking back to their last drink doesn't produce a crystal clear memory of what they last consumed. "Kind" of alcohol is one thing, but how many people name their drinks? "This one is 'Charles,' and that one is 'Kathy.'"

These are just a few examples amongst many. Instead of providing clarity to the process of license restoration, a person filing an appeal is asked about things already covered by the substance abuse evaluation, as if the state is just waiting for someone to say something that doesn't exactly match up so they can deny the appeal. Remember, the whole point of a driver's license restoration is to prove, by what the state calls "clear and convincing evidence," that your alcohol problem "is under control and likely to remain under control." This means that you have to prove you haven't had a drink for the statutorily required minimum time (that can range; in my Office, I require at least 12 months of sobriety), and, more importantly, that you have the tools necessary to back up a commitment to never drink again. Winning a license appeal means proving that you're sober, and also proving that you're a safe bet to remain sober for life, meaning that you'll never drink again.

While I could rant about the new form all day long, I also have to just deal with it. It's here; it is what it is. Because this form affects the very essence of what I do for a living, my staff and I have already gone over it with a fine-toothed comb numerous times. We've had to sit down with my Clients and go over each question, one by one, and then later compare their answers to the information provided by the evaluator on the completed Substance Abuse Evaluation. As a result, we've had to "fix" things that could later prove problematic, and, in doing so, have wondered how anyone who doesn't do this stuff everyday would even know to catch it, much less correct it.

When all is said and done, this is what I get paid for. It's this attention to detail that enables me to provide a guarantee in every license restoration or clearance case I take, and eliminates any element of risk for my Client. You'll pay me once, and you'll get back on the road. Of course, I thrive by winning these cases the first time, and not having to come back to do "warranty work," and I do that by pouring my heart and soul and time into each and every case I take. That's why my first meeting with a new Client takes 3 hours. With this new form, it might start taking longer, but, as the old saying goes, "nothing good comes easy."

In the next article, I'll look at another huge change about to affect license appeals, and how the DAAD really blew it by wasting its time with this new form while entirely missing the most profound changes to the landscape of alcohol issues in nearly 20 years.

There is none; it's that simple. In fact, the only limitation I place upon my guarantee is if someone lies to me, or holds back essential information. And to be very clear on that point, I spend 3 hours with a new Client at our first face-to-face meeting, not only going over every line of the state's Substance Abuse Evaluation form, but also completing my own Substance Abuse Evaluation Checklist form, as well. Essentially, this precludes anything from being "forgotten," or "not clear."

A few months ago, I had a case that, to be polite about it, involved a "fib", and it served as the inspiration for the article immediately before this one. I represented a guy in a License Appeal who first told me, and then the Evaluator that completed his Substance Abuse Evaluation, that he had gone to AA for about 8 of the last 9 years 3 to 4 times a week, and then reduced his attendance to 1 or 2 times a week for the last year. He was adamant about that, and even brought a letter from his AA "sponsor."

When we "prepped" for his Hearing, I was clear about how his AA attendance would play a role in his case. Then, when we got to the Hearing, the particular Hearing Officer that was deciding his case asked him about a few of the AA steps. Not only couldn't the guy repeat one word of any of the steps the Hearing Officer asked about, but when the Hearing Officer asked if he could repeat any part of any of the steps, he choked. Later, he admitted that he had really overstated his involvement with AA (that was not a surprise). He was, however, really and truly sober, and while that's far from enough to win, I'm certain the Hearing Officer knew that, whatever else, at least my Client was not still drinking. This would have been the classic case where I could have explained that my guarantee doesn't really apply, but that's not how I do things. I'm sticking with my Client, and will handle the next License Hearing without additional charge. I know my Client is really sober, but I'll just have to make darn sure that he is far more accurate in describing his involvement with AA next time.

The larger point here is that, absent something really profound, when I take your case and put my name on your paperwork, it becomes personal. I accept my Fee with the explicit understanding that in exchange for you paying it, I'll get you back on the road. This is not the kind of agreement that needs to be riddled with disclaimers and exceptions and all that bologna. That's half the problem with our world, anyway. When someone looks you in the eye and tells you something, you should be able to count on that. If you buy a new car, it comes with a warranty. The modern idea is that if you plunk the money down to buy or lease a new car, you shouldn't have to worry about it working or not; if there's a problem, it's covered. I work the same way. If I take your case, you'll only pay me once, and you're getting back on the road, period.

If there is anything even resembling a "catch," to my guarantee, it's that I certainly don't take every case that comes my way. In fact, I don't even take most cases that come my way, because I will only accept License Restoration Clients who have really and truly quit drinking. This part is non-negotiable. The whole point of the License Restoration process is to make sure that anyone who is a risk to ever drink again is not put back behind the wheel. My integrity is not for sale. I make my living winning these cases fair and square. I show up at the DAAD with Clients that can look you in the eye and talk about how their lives have changed since they quit drinking. There is nothing that feels better than the power of telling the truth.

It's my job to navigate the million little rules that govern a License Restoration, and I do that so well that I offer my guarantee. While it's easy to talk about "successes" and "wins" and things like that, the bottom line is that I put my money where my mouth is. If I take your case, you're getting a license. It's that simple.

This means that not being in AA doesn't present any problem in winning a License Restoration or Clearance case. Problems do arise, however, when people don't believe this and claim to be involved in AA when they're not, or otherwise exaggerate the extent of their involvement in and knowledge of the AA program. You can't fake this stuff.

At a Driver's License Restoration Hearing, you will likely be asked about your AA involvement. If you don't go, or haven't gone for quite a while, then you won't be pressed on the subject any further, except that some Hearing Officers may ask why. This isn't a bad thing, but as anyone who has ever gone to AA knows, the AA program teaches that once you begin attending meetings, you should always keep attending. While I entirely disagree with this sentiment, some of the program's more vocal advocates will call someone who no longer attends meetings, but is also no longer drinking, a "dry drunk." That's not only wrong, it's counter-productive. Fortunately, most people active in AA know that what works for one person may not work for another, and don't hold such a misguided view.

If you never went to AA, then you'll have to explain to the Hearing Officer what you learned about your relationship to alcohol and how you internalized that. You'll have to describe the tools you've developed to avoid triggers and relapse and what changes you've made in your life to insure that happens. While this might sound like a tall order, it is precisely the stuff that I help with to insure you win. Remember, I guarantee you'll win, so I'll do whatever is necessary to make sure you're fully prepared for your Hearing.

If you did attend AA in the past, but no longer attend now, then the Hearing Officer is going to want to know why you stopped. This is not an accusatory question. Instead, the Hearing Officer will be looking to see if you simply got what you needed from your time in the program, or had some "issue" with it (many people complain about the "religious" aspect of AA) or simply found something better. Plenty of people find that, by the time they ever get to AA, they've just "moved on" and have established a busy, sober lifestyle.

One of the worst things a person can do, however, is to think that they've spent enough time around AA to make it seem like they are active in the program, or that they learned things that they cannot articulate very well. This may work for someone who has a few years of attendance to their credit, and only recently quit going, but not for someone who only went for a short time and hasn't been back for a long while.

At the Hearing, my poor Client couldn't recall a single step he was asked about, so the frustrated Hearing Officer asked him to recite any step; he couldn't. He literally couldn't put two words together that had anything to do with any of the 12 Steps of AA or the serenity prayer. He couldn't say a single thing about the program other than that he goes to meetings. It was hardly a convincing performance.

Later, he admitted that he grossly exaggerated his AA attendance. He pointed out that he has been sober for nearly 10 years, a fact I did not doubt. Even though he wasn't exactly truthful about his involvement in AA, and in large part because I know he's genuinely sober, I am sticking with him and will honor my guarantee and get him back on the road.

The more important point here, however, is that he would have easily won his Appeal right then and there if he had not "fibbed" about his involvement in AA. It would have been no problem for me to work up his case as a guy who did about a year or two in AA long ago, and who has just moved on and lives an alcohol-free sober lifestyle now. He wouldn't have been asked about any steps. But because he opened the door by claiming a familiarity with the steps of AA, he was asked about it. Had he been more truthful, he'd be driving right now.

This is not an isolated phenomenon. Many years ago, it was the case that the DAAD practically required AA in order to restore a driver's license. That has changed, but the notion that you have to be in AA to get your license back still lingers. As the case I have just described illustrates, that's not only untrue, but causes problems. In fact, this misnomer is almost persistent enough to be considered an urban legend.

Beyond exaggerating or faking AA attendance, some people get the idea that they should start going to, or start going back to AA to help their case. This is an equally bad idea. If you've maintained your sobriety without AA, and then start going to AA, the DAAD will rightfully wonder if you've been struggling with your abstinence and needed some support group help. If that's the case, then they'll also likely conclude that perhaps you need a bit more time in the program before a decision can be made on a License Appeal. On the other hand, if you admit you went back to make it "look good," you won't be able to offer any real benefit of your AA attendance, and the DAAD will wonder what else you'll do or say to "look good."

The best thing to do is to be honest. Think about my guarantee for a moment: If you're honestly sober, and I take your case, I guarantee I'll win your license back. You'll only pay me once. That's because the real meat and potatoes of a License Appeal is proving, by what's called "clear and convincing evidence," that you're a safe bet to never drink again. Under the DAAD's Rule 13, this means proving that your alcohol problem is "likely to remain under control." AA is not required to prove that point, but honesty is. Either you get it, or you don't. Either you've changed your life and committed to remain alcohol-free, or not. If you have, then AA may or may not be a part of that. There's no point in putting up a phony facade to try and make things "look good."

AA is an important player in the world of recovery, but it does not define nor does it own the concept of sobriety. AA is the right program for some people, but not for everyone. The DAAD knows this. If you're really sober, that's all that matters. You don't need to go to AA. Moreover, you should never use AA just to "look good," because you'll wind up looking just the opposite.

Sometimes, I see a long email waiting to be read. As things work out in the real world, it more often than not it is the case that the more someone writes, the less interested they are in retaining my services. Like so many of my blog articles, this one was inspired by a recent experience. The day before this article was written, I found a long, descriptive email asking my thoughts on how the writer's DUI case would work out. The writer had hired a Lawyer at the recommendation of a friend, only to find out that the Lawyer wasn't very familiar with how things are done in the suburban Detroit Court where his case is pending.

Without fail, people will take the time to point out to me those things they think are important, or, they'll repeat what they've heard from their Lawyer, and now believe to be important. I don't know this guy's Lawyer from Santa Claus, so what he and I think is important could be miles apart. As I read on, I immediately formed some questions. What about this? What about that? I needed more information to even begin to form any kind of picture, and that's with all the detail this writer had already supplied.

Let's rewind for a second: This writer already has a Lawyer. At the end of my very long day, when I'm looking at maybe two hours of time for myself, how important is giving a second opinion to someone who is not, and certainly not going to be, my Client? Beyond that, before I could form any solid opinion, I'd need to see the evidence. I'd need to read the Police Report, and, if the other Lawyer was smart enough to obtain a copy of the Police in-car video, assuming it was relevant, watch that, as well.

I had to tell the guy that of course I can give a very accurate assessment of what's likely to happen, but I'd have to review all of the evidence to do that, and that would mean he'd have to be my Client. I didn't go on to tell him that I really have no interest in taking over a DUI case that's moved very far along because, in all truth, unless the previous Lawyer just happens to be a "DUI Lawyer," like me, chances are it wasn't handled in the same way I'd have handled it, anyway. To begin with the guy had taken on a case in a Court he wasn't familiar with, and that was a huge mistake, already causing problems. That's my rather lame attempt to nicely say that, more likely than not, his current Lawyer has already done other things I would consider mistakes, as well. DUI cases are hard enough, but to take one that's been botched up is a huge headache.

At least this guy had a Lawyer. Another source of frustration (or, more accurately, "time waster") are those long emails with all the details the writer thinks are important that begin with "My boyfriend..." or otherwise end with some mention of money "being tight." As I noted, I can't really offer any kind of fair "prediction" about anyone's case without all the facts, and to get a hold of all the facts, I have to be the Lawyer. Even so, I'd never email a Doctor with a long description of how something hurts, and when, and what makes it worse, and then ask for medical advice. That doesn't stop some people, though...

Any real kind of "prediction" about what will specifically happen in any given case must be based on the facts of, and those begin with when, where, why, and how a person is pulled over. Before I (or anyone, for that matter) can really give a competent assessment of how a case is likely to play out, all the evidence has to by carefully reviewed and analyzed. Usually, after my first meeting with a new Client (that takes about 2 hours), I have a pretty good idea about the case. At that point, I can at least outline the broader issues and let the Client know what other information I need, and how it can affect the case. Saying anything more, with less information, isn't the kind of prediction someone facing a DUI should be looking for. That's calling for more of an "educated guess."

DUI cases involve a lot more than BAC results and a Ticket. There are countless potential things that can affect the outcome of any given case, and any realistic assessment needs to take all of those things into account.

It's no secret that the internet has "taken over" many aspects of our day-to-day lives. Newspapers are dropping like flies while online reading has soared. Video stores are disappearing faster than friends of Kwame Kilpatrick as streaming video displaces DVD rentals. The legal profession is migrating to the net as part of this rather seismic shift. Five years ago, websites for Lawyers were an afterthought. While not amongst the very first, I was certainly an early adopter. Now, everyone has a website, and a whole cottage industry to push those sites onto your browser has grown beyond belief.

This can be a very deep topic, but the bottom line is that, as a Lawyer, you want a highly ranked site that gets Clients. To accomplish this goal, one must navigate the "rules" established by the search engines, with Google being the biggest player of them all. Thus, when designing or redesigning or optimizing a website, the real goal is to come up high on relevant Google searches. Google refines its rules from time to time, and when it does, every one follows suit. Where it used to be that having a basic but simple "Lawyer website" made you stand out from the crowd, now that everyone has a site, having good content is more important than ever. While that should always be the case, and given that about 60% of all internet searches are conducted through Google, this means that as a Lawyer, you want to make sure your site is "liked" by Google. Now that Google is screening for good, relevant and plentiful content, there are specialized companies offering services for Lawyers to have such content professionally written. Just Google "legal content writing" and see for yourself.

That kind of scares me.

I write all of my own content on both this blog and my website. That's not a boast, because I'm sure there are plenty of better writers than me out there, but the more important point is that I write for my particular Clientele. I know every word of my site and blog, because I've written every word of it. I certainly cannot compete with the "experts" who know how to lace such content with specialized "keywords" that make a site more highly ranked by Google, but I don't' think any one of them can compete with me when it comes to talking in real terms about DUI charges, and how they play out. There's no guy in LA who can write about the Court in Rochester Hills, or Troy, or Shelby Township, or New Baltimore or Detroit, first because as much as he might be a legal writer, he's not a Lawyer, and second, because he's not from Michigan, anyway.

One of the biggest things internet marketing specialists push to Lawyers is to load up your site with testimonials, or success stories. I have some real, honest to goodness testimonials on my site culled from the emails of grateful Clients, but I feel funny about asking people to write them. I have a few more "in the bank," so to speak, ready to use when the current batch gets old, but I'll only take them if they are spontaneous. When I see a boatload of testimonials on any site, I cannot believe that they're all spontaneous, or so well written, either.

5:32 PM (3 minutes ago)
Jeff,
Just want to thank you again for getting my last case kicked out. You're the BEST! Hope your family and yourself are doing well. I'm doing well, almost off this probation. I know I'm going to need you again when I try to get my license back...

The case of Joe Doe: We were able, after x-rays, to find a cavity in one of Joe's teeth and we thereafter fixed it with a filling. Now, Joe doesn't have to worry about the cavity getting any worse and his tooth falling out.

I had a cavity and if I wouldn't have had it fixed, I could have eventually lost the tooth and maybe even more teeth, but Dr. X gave me a filling, instead, and saved my whole mouth.

I drop High BAC cases to Impaired Driving charges all the time. I do the same thing with 3rd Offense Felony DUI cases, having them dropped to 2nd Offense Misdemeanors. This is what DUI Lawyers are supposed to do. Of course, in writing these day to day things up, or, as one might say, "dressing" them up as "successes," things can be portrayed in a way that makes them sound a bit more dramatic. Let's use Dr. X and Joe again to illustrate this point. Instead of touting Joe as some kind of incredible accomplishment, how about Doctor X putting it this way:

Last week, I put in more than 20 fillings just like Joe's, and my patients were in and out in less than an hour and able to eat as soon as they left the Office.

Dr. X is great. It didn't hurt a bit, and I was able to eat dinner like it never happened.

It never hurts to get a reality check, either. As I look around the net, and I browse the various "success" stories other Lawyers have put up, I have to balance the image they try and convey with this very stark fact:

In the year 2011, there were 54,291 drunk and drug driving arrests in Michigan. Out of all of those, only 95 were found "not guilty." That means 99.83% of those people arrested did not win at trial.

This allows me to charge my Fees in exchange for providing services based upon twenty-plus years of related, meaning relevant, experience. When you think about it, anything less and you're just paying your Lawyer's tuition. I've been fortunate to cultivate a practice that keeps me busy enough to be able to only have to work within my comfort zone, and years ago I marked that off as the kinds of cases I have handled regularly and that I like doing. I like handling embezzlement and indecent exposure cases; I don't feel the same way about domestic violence cases.

Does this mean that I don't handle "other" kinds of criminal cases? Of course not! Not too long ago, for example, I was called upon to represent a college-bound high school senior who, along with a few fellow teammates from his school, found himself running by some local railroad tracks. Well, "boys will be boys," as the saying goes. Taking a break from their running, these young guys got the idea that if a train cuts a penny in half rather cleanly, it could probably cut a few other things in half, as well. Looking around, they found a few things that seemed, at least at the moment, way more interesting than a penny, like a discarded car tire and some other debris near the tracks. Clearly thinking more like the kids they were rather than the adults they'd eventually become, they lined up some "stuff" on the tracks to see what would happen when the train ran it over. When they heard a train approaching, they hid nearby.

As he approached, the train conductor was afraid the train could be derailed as it ran over all the debris the boys had placed on the tracks. Unfortunately, by the time he saw it, there was no way to avoid running over it. He radioed ahead for the Police, who showed up, rounded up the boys, and charged them with Felonies, including attempting to derail a train. As serious as the consequences might have been, none of these boys, including my Client, ever thought about doing such a thing (which, of course, was part of the problem).

I was contacted by the family and hired to represent their son. I managed to keep the whole thing completely off of his Record, and about 9 months after the case began, it was closed out and my all-the-wiser Client headed off to college, conviction-free and no longer on Probation.

The "attempted derailment" charge in that case was a first for the Judge, who has been on the bench a long time, and first for the Prosecutor, who has been at his job for over 20 years, as well a first for me. Even so, this case fell precisely within my range of experience, even though the exact charge is rarely ever brought. My point is that while it did not fall precisely within the description of the kinds of cases I regularly handle, it was something squarely within the scope of my broader experience and well within my "comfort zone."

I am rather fortunate that I don't have to take cases outside of my comfort zone. When looking for a lawyer, you should use the same standard, and hire a Lawyer who is in your "comfort zone." You need to like and trust the Lawyer that you're going to hire. One of the biggest misconceptions people have is that if some well-known Lawyer can win a murder case, he or she can surely do well in a DUI or "lesser" matter. That's no more true than saying if a Cardiac Surgeon can save the life of a person who was about to die, surely he or she can handle replacing a knee, or a hip. I specifically concentrate in what I do, and that defines who I am as a Lawyer. The term "Criminal Lawyer" is broad. There are a lot of Laws, the violation of which is a crime. I've picked those that I like handling, and I do particularly well at handling them.

If you're looking for a Lawyer, you should be looking for an experienced Lawyer. You should read what the various candidates for your money have written. You should compare, and ask questions, if you have any. You should not simply respond to "call me" advertisements, or meaningless and worn out slogans like, "tough" or "aggressive." You should respond to those Lawyers who have marked out a comfort zone that includes your type of charge, and then make sure that lawyer (meaning his or her personality) falls within your comfort zone. As much as a Lawyer can be defined by what he or she does and does not do, when a person walks into Court, they are, to a certain extent, likewise characterized, if not defined, by the lawyer, or kind of lawyer did or did not hire.

The bottom line to any such consideration is always to do your homework, and choose wisely.

"Getting it," means coming to the realization that you can no longer drink. It means having been beaten up by your drinking so badly that you can truly say you've had enough. In fact, if there's one thing that really separates those who get it from those who don't, it's that those who really "get it" have hit bottom.

To put his in perspective, the rules of the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) require that, in order to win a License Appeal case, a person must prove, by what it calls "clear and convincing evidence," that his or her alcohol problem "is under control and likely to remain under control." That means a person must essentially convince the Hearing Officer that they are a safe bet to never drink again. There is no middle ground or qualifier here: Either you've quit drinking, or not.

The truth is that any person who still hangs on to the belief that he or she can have the occasional glass of wine has not yet hit bottom. That belief conflicts with reality, as well. I "occasionally" light fireworks, usually on the Fourth of July and on New Years. I "occasionally" eat at McDonalds, maxing out at about 3 or 4 times a year. Those struggling with the belief that they can somehow find a way to control or manage their drinking will inevitably define "occasionally" with a much greater degree of frequency than everyone else.

However you cut it, "occasional" is a lot less frequent than "weekly." The larger point is that once a person's drinking reaches the point of becoming a problem (and the State presumes that's the case once a person racks up 2 DUI's within 7 years), the only accepted way of getting over it is to completely eliminate alcohol from the picture. Forever. Sober people understand this.

There is an identifiable starting point from which everyone gets sober. AA people sometimes describe it as "being sick and tired of being sick and tired." Substance Abuse Counselors characterize it as "hitting bottom." You can also think of it as a kind of "final humiliation," because in every case where a person throws down the gauntlet and declares that, "enough is enough," they have already felt humiliated, even if just privately, by the consequences of their drinking. I've heard people say that they realized their drinking had become problem when they kept on (in some cases "couldn't stop") drinking even though they recognized that it was causing them to live well beneath their own potential. For such people, drinking wasn't fun anymore...

Thus, a person has to really get beaten up before they "get it." In fact, it is almost always the lack of having hit a true "bottom" that separates past unsuccessful attempts to quit from that final attempt that actually sticks.

Really "getting it," then, means having really hit bottom. And really "getting it" means that a person has come to understand that not only can't they ever drink another drop of alcohol as long as they live, but that they must also be on the lookout to avoid ingesting anything that will change their mood or state of mind. A person in recovery cannot use any potentially addictive medication, unless his or her Doctor knows about their recovery and controls and limits their use. No one expects a recovering alcoholic to have a leg amputated and not get pain medicine. But it does mean that if a person recovering from a drinking problem has a tooth pulled, and their Dentist gives them a prescription for Vicodin, they'll skip filling it and tough it out with some regular over-the-counter Extra Strength Tylenol, instead.

Likewise, a person who is really in recovery, meaning a person who really "gets it," will not use drugs that can trigger any kind of relapse. They understand that all potentially addictive medications, or drugs that can be abused and that can alter one's mind or mood need to be avoided. When a person finally "gets it," they see everything differently. They ditch the drinking friends. They don't hang out at bars. They get rid of any alcohol in the home. Their life does an abrupt and complete one hundred and eighty degree turn. If this makes perfect sense to you, then you probably get it. If not, then you're not there yet. Getting to the point of "getting it" is a process. Every single person who now "gets it" did not get it at some point before. It's like riding a bike. Everyone who can ride a bike used to be a person that could not yet ride a bike; it's a process.

In the case of a License Appeal, though, a person has to be past the point of "getting it" in order to win. In fact, the real point of the License Appeal process is to make sure that a person really "gets it." The whole inquiry of the DAAD is to make sure that a person has internalized the belief that he or she can never drink again, and has made the necessary changes in life to assure that. If that describes you, then you "get it." The only thing left to get is your License. If you're not there yet, that's okay, as long as you're moving in the right direction. In either case, call me. I'll be glad to help.

In Part 2, we focused on the important role of the alcohol assessment test, and how the result of that test helps "suggest" a diagnosis. We also saw that a very common problem is the DAAD's over-reliance on that test result in determining a proper diagnosis. From there, we looked at how issues with a urine screen can create the appearance of problems that aren't really there, and how a person's prior periods of abstinence can similarly give rise to the appearance of being a chronic "quitter" who just can't stay "quit."

In this final installment, we'll tackle the most important section of the Substance Abuse Evaluation, the prognosis. It only makes sense that the Evaluator's educated prediction about a person's ability to remain Sober is "the big cheese" of the whole Evaluation process. We will also see how the final section of the Evaluation, the Continuum of Care Recommendation, can upset the whole apple cart. While I'll go on to introduce this section as "last, but not least," it is precisely because this section is often given the least amount of consideration by an Evaluator that it can tank an otherwise good Evaluation.

Everything we've covered thus far in both Parts 1 and 2 of this article eventually and inevitably leads to the ultimate goal of the Substance Abuse Evaluation - the Prognosis. At its simplest, this is the considered and professional opinion of the Evaluator about whether the person's alcohol problem is "likely to remain under control." This is really the answer to the $64,000 question, so to speak. If there is any "it all comes down to this" aspect of the License Appeal process, this is it.

Here again, what sounds easy at first gets rather complicated. Over the years, a number of Clinics and Evaluators made a quick, albeit short-lived fortune writing up glowing Evaluations that gave only the best prognoses for anyone willing to pay their Fee. The DAAD caught onto this with lightening speed. Those operations have come and gone like yesterday's news.

Even with those concerns part of ancient history, there are plenty of other "prognosis" issues that arise with enough regularity to be considered relatively common. By Law, a prognosis must at least be "good." That means that with a prognosis of "poor," "guarded" or "fair," a License Restoration Appeal MUST be denied. To put it another way, you cannot win a License Appeal with anything less than a "good" prognosis. Many of those who ultimately hire me have already tried a License Appeal before and lost. Part of what I need them to bring in, when we meet, is the paperwork from any prior Appeal(s). It's not that I want to show off (okay, maybe I do a little bit...), but often enough, I'll pick up their prior Evaluation first. Within a few seconds of beginning to read it, and without ever having looked at their Denial order, I can tell them why they lost. When I see an Evaluation, for example, with the "fair" box checked in the prognosis section, I can tell the person that such a prognosis figured prominently in the reason for their prior denial. This is always met with an agreeing shake of the head, and then a question about why their previous Evaluator or Lawyer didn't know this.

Having a prognosis that's not good enough is only half of the story. Beyond those now-defunct operations that gave everybody a great Evaluation and a glowing prognosis, the DAAD is always and correctly suspicious of a prognosis that's just too good. There are only two choices of "good enough" prognoses: Good and Excellent. Excellent may, at first glance, seem better than good, but in truth, such a prognosis often brings more problems than it solves.

For example, a person with 23 years of continuous Sobriety, who attends AA twice per week, sponsors 3 or 4 other people, and who runs the twice annual "4th step retreat" is probably in line to get an "excellent" prognosis for continued abstinence.

By contrast, the person with just over 2 years clean time from their last drink, who no longer goes to AA may know, in the fiber of his or her soul, that he or she will never drink again is far more a candidate for a "good" prognosis for continued abstinence rather than "excellent." In 10 years, when that same person has been living a Sober Lifestyle for over a dozen years, his or her prognosis may likely be excellent, but that's not the case 2 years out...

Whether a prognosis is good or excellent, it must logically follow from the balance of the Evaluation. This means that a person with 5 DUI's, a dilute urine screen, a lengthy relapse history and 13 months of abstinence will not only be a million miles from having an "excellent," prognosis, but will likely not be seen as "good," either. By the same token, the person we used in the example above, who had 23 years of Sobriety, would be expected to get an "excellent" prognosis. If not, then the Evaluator would have to explain the reasons why "good," as opposed to "excellent" is the proper finding. You don't have to think about it too much before you start wondering, "what's wrong...?"

To complicate matters even more, all of these determinations are subjective. An Evaluator whose work experience as a Substance Abuse Counselor deals with more of a Criminal or DUI population is likely to see things differently than one whose career is in high-end, private rehab. My own experience in this regard is telling. The bulk of my day-to-day work revolves around License Restoration Appeals, but I also have a busy DUI Practice, as well. While it is true, for example, that all of my License Restoration Clients with 2 DUI's have come to accept their drinking as a problem and have gotten Sober, it is also true that most of my 2nd Offense DUI Clients don't believe they have a drinking problem. I cannot escape seeing my 2nd Offense DUI Clients in light of my work with my License Restoration Clients whose 2nd Offense marked the turning point in their lives and for whom it was the catalyst to becoming Sober. Thus, everyone in the License Appeal process, from the Evaluator to the Lawyer to the Hearing Officer is undeniably influenced by his or her life experiences.

Whatever else, the Evaluator must explain his or her given prognosis. The form itself provides a space for this explanation, but I've seen some Evaluations that either left this section blank, or skimped out on the details. This is hardly the place for the Evaluator to be "tight-lipped."

Last, but certainly not least, is the Continuum of Care Recommendation. As a sort of conclusion to the Evaluation, the Evaluator is expected to advise the DAAD what, if any, additional AA, counseling or treatment a person should do to either get or stay Sober. In a case where the Evaluator feels a person doesn't have the proper tools to remain Sober, he or she may recommend that the person do some more counseling, or go to AA for a while.

This is best explained a little bit out of order. I have to first point out that the Continuum of Care section never creates a problem for me, at least in Appeals that I handle where a person has never tried before. It can be a problem, though, when someone has previously lost a prior License Appeal, without me as his or her Lawyer. In these cases, I can wind up with a lot of repair work to do.

As we begin this final part of the discussion, I should point out that this serves as a first rate example of how a seemingly little thing can turn out to be a major thing, and be fatal to a License Appeal. Let's clarify this with a few examples:

Assume that Sobriety Sam does go to AA once per week. He believes that weekly AA is essential to his recovery. A good Evaluator (like those that I use) will recommend, as a "Continuum of Care," that Sam keep going to AA on a weekly basis. This is no big deal.

Assume, however, that Recovery Rhonda went to AA for a while because she was Court-ordered to do so, but then stopped as soon as she no longer had to go. In addition, she has been through outpatient counseling. Most of all, however, by the time she picked up her last DUI, she had no doubt her drinking was a problem. She was ready to quit, and, as the AA people say, she was "sick and tired of being sick and tired." From the moment she bonded out of Jail, she never took another drink, immediately ditched her drinking friends and began rebuilding the relationships with the people that really mattered in her life, those she had to some degree neglected while the "party" was on. She soon enough established a "Sober Lifestyle." While at AA, she kept hearing how important it was to always attend, but she just didn't feel that going to meetings was doing her any good. Perhaps she didn't identify with the people there, or she was put off by the religious component of the program; it could be any of a million good reasons, but the bottom line is that Rhonda has been able to maintain her Sobriety without AA. She simply does not need to go to meetings.

A truly good Evaluator will see that AA is not for Rhonda. As it turns out, AA is now considered one of several primary tools (including Cognitive Behavioral Therapy and Rational Emotive Behavioral Therapy) to help people get over a drinking problem. Twenty years ago (remember that...?), AA was seen as pretty much "it." Accordingly, an Evaluator up to date with modern treatment protocols will recommend that Rhonda simply continue living a Sober Lifestyle. The Evaluator will note that Rhonda has the tools needed to maintain her Sobriety, and that no further AA meetings or counseling is necessary.

But it doesn't always work out that way. In many cases, Ernie the Evaluator may be a guy who has 20 years of Sobriety under his own belt. Ernie learned how to get Sober at AA. If it worked for him, then he thinks it should work for everyone else, too. Alternatively, Elaine the Evaluator may not be in her own recovery, but may just be "old school." In either case, these well-meaning people may, with all the best intentions in the world, suggest that Recovery Rhonda go back to AA to "strengthen" her understanding of recovery, or for "additional support." This simple suggestion, however, creates a catastrophic problem for a License Appeal:

The Evaluator most likely just meant that it wouldn't hurt if Rhonda checked into a meeting once in a while. If you asked the Evaluator, he or she would probably tell you that they didn't mean Rhonda needed to go to meetings or else she'd start drinking again...

The DAAD, however, will read it just that way. Even if the prognosis on Rhonda's Evaluation is "good," once the Evaluator recommends AA, (not because it's "needed," but really because "it wouldn't hurt,") the DAAD will see Rhonda's prognosis as "conditional." The Hearing Officer will say that the Evaluator thinks Rhonda should go to AA, and she's not going. Since the Hearing Officer doesn't know what she'll do in the next year, it is better to deny her Appeal right now and let her get back into AA. Once she gets the additional support the Evaluator thinks she should have, the Appeal can be better decided next year.

As I said, I don't have this problem with the Evaluators I use. Even if I did, I'd make sure to get the Evaluation fixed, or re-done, because this kind of seemingly innocent Continuum of Care Recommendation will kill a License Appeal case. Because I can speak and understand the legal language and the Clinical language, I could easily fix this in most cases by speaking with the Evaluator and explaining the legal implications in terms he or she would comprehend.

Throughout the 3 installments of this article, it has been my goal to point out real-world, common errors on the Substance Abuse Evaluation that will cause a Driver's License Restoration Appeal to be denied. I have tried to stay away from the underlying requirement that a person prove, by "clear and convincing evidence," that his or her alcohol problem is "under control, and likely to remain under control." Instead, I have tried to focus on the more clerical, or topical problems that will stop an Appeal dead in its tracks and prevent the Hearing Officer from ever needing to dig that deep.

If there is a lesson to be learned here, it's that winning a License Appeal is very much about not getting tripped up by any of the "million little rules," that control these cases, many of which are unwritten, or applied in a way that might be very different than a simple reading would suggest. In the first place you have to know the "rule" exists before you can observe it, and then you have to know what it means, or how it's applied in the real world. I can certainly help with that. I don't take just any License Appeal case, either; I only undertake representation for people who have really quit drinking. My integrity is not for sale. Nor do I "compete" with anyone else in terms of Fees, or quality of service. I have put up more relevant, useful information about License Restorations on my site and on this blog than can be found everywhere else combined a thousand times over. That's how I do things. I back up every case I take by guaranteeing a win. No one can compete with that...

If you're really Sober, and you're ready to get back on the road and put a valid Driver's License back into your wallet, call me. I'll make it happen - and I Guarantee it.

We covered the proper listing of a person's biographical data, as well as their alcohol education, counseling and support group history. Here, in this second installment, we'll begin by examining the next part of the Evaluation form. This is called the "Testing Instrument," and refers to the written alcohol screening test a person takes as part of the Evaluation. This test is used to help come up with a diagnosis of a person's drinking problem. We're going to see how, in the Clinical world, this test is only part of the diagnostic process, and how the DAAD often places far too much emphasis upon this test, sometimes to the point of using the test result as the sole criteria for reaching a diagnosis, thereby undermining the role of the Evaluator and reaching an Clinically deficient conclusion.

One of the biggest problems that can cause an Appeal to tank involves the administration and interpretation of the written alcohol-screening test (the "testing instrument") used by the Evaluator. This is really a tricky subject. Only people with proper training and credentials should administer and interpret one of these tests. Some tests, however, are of the "over the counter" variety, and can be "scored" by anyone with a scoring key. This happens all the time when a person takes such a test as part of their Probation screening in a DUI case, before the Sentencing. Almost without exception, Probation Officers have no formal Clinical training or certification or advanced degree that allows them to do anything more than take a garden variety test you can get anywhere on the internet, thrust it in front of someone, and then add up his or her score and compare it to the provided scoring key. On these tests, a person's "score" suggests a diagnosis regarding their alcohol use. Such a "suggestion" related to a score on a written test is hardly any kind of proper Clinical "diagnosis," but the Court system, and, by extension, the DAAD overlooks this.

To digress for a moment, this is a subject that is very important to me. Beyond just being "interested" in it, I am enrolled and involved in post-graduate addiction studies at the University level. Imagine how I felt when, as part of my Clinical matriculation, it was presented, as a matter of fact, that the Judicial system in the U.S. is between 10 to 20 years behind understanding, much less using current Clinical protocols. I was embarrassed for my profession, although relieved to find out that everyone was just behind the curve, and not simply stupid...

This has meaning for the DAAD. It means that the best Clinical understanding most Hearing Officers have, particularly as non-Clinicians, is not only frighteningly incomplete, but anywhere from a decade or two out of date, at that. Yet these same people will examine a Substance Abuse Evaluation completed by a credentialed, licensed Clinician and essentially second-guess it. This means that in a world where streaming hi-def video is already making Blu-Ray obsolete, the DAAD is just learning how to work a VHS videotape machine. And while that sounds funny, it's anything but that when YOUR License Appeal is on the line.

Most often, the "reinterpretation" of an alcohol screening test centers on the diagnosis it suggests when "scored." There are 2 possible alcohol diagnoses (beyond "no diagnosis," which is itself a diagnosis, and means "no problem") contemplated by the DAAD: alcohol abuse, and alcohol dependence. There are similar diagnoses for other drugs, but we'll have to pass on that for now, or this article will turn into a textbook.

At any rate, the written alcohol-screening test is just one tool used by an Evaluator to reach a proper diagnosis. While important, it is far from the only tool, and in the real world, it would be Clinically unsound to use that test as the only tool to diagnose someone. This is really no different than having a mass show up on an x-ray. No Doctor in his right mind is going to wheel his patient into the operating room and start cutting him or her open, based on that information alone. Instead, there will be other tests to follow, like an ultrasound, a CAT scan maybe an MRI and perhaps even a biopsy. Eventually, a diagnosis will be reached by reading all the various test results in conjunction with each other, and as interpreted by the Doctor. The same thing holds true for a Substance Abuse Counselor when he or she evaluates someone. The results of the written test are read in conjunction with other information obtained through the interview process, including the person's use history, previous attempts to cut down or control his or her drinking, continued use despite adverse consequences, and a bunch of other "intangible" things whose importance and weight should be determined by the Evaluator.

One of the biggest problems with diagnoses "reinterpreted" by the DAAD is that, although the Evaluator is probably correct in reaching his or her conclusion, they often fail to adequately explain why their diagnosis is different than what the testing instrument itself suggests. This is rather easily remedied before filing the Appeal, but again, one has to know what to look for. Without such oversight, a "do-it-yourself" Appeal, or one handled by some Lawyer that claims to "do" License Restoration cases can rather easily be derailed simply because this issue was not properly addressed after the Evaluation has been completed, but before it is filed. Again, this is where my particular expertise is rather valuable, because more than just recognizing this issue when it's present, I understand the Clinical language of the Evaluator, and can help him or her translate what needs to be said into terms more easily understood by a Lawyer, albeit one determined to "play" Substance Abuse Counselor (all Hearing Officer's are Lawyers, and are technically called "Administrative Law Examiners").

A urine screen is also required as part of the Substance Abuse Evaluation. At first glance, this would seem like a no-brainer. If a person is really "Sober," then they'll certainly not test positive for alcohol or any illicit drugs like cocaine or marijuana. In the real world, though, there are often problems at this stage.

First, the urine screen is supposed to be provided at the time of the Substance Abuse Evaluation. For any of many reasons, a urine test will sometimes come back as "dilute." The DAAD's concern is that this is an attempt to mask what would have otherwise been a positive test for some substance. While that is certainly understandable, in the vast majority of cases, a person's urine sample tests out as dilute because of honest, legitimate reasons, like having had too much coffee the morning of the evaluation. Fixing a "dilute" urine screen is rather easy. Dealing with a test result that is positive for certain classes of drugs is much harder. It is said that, in life, timing is everything. This is especially true, for example when a person forgets that a couple of nights ago, complaining about having sprained their back, or being all worked up about something, a good friend or relative gave them a Vicodin or a Xanax to help.

I've had cases where a person has tested positive for anti-anxiety medication (any potentially addictive, mind or mood-altering medication creates a HUGE issues in a License Appeal) without even knowing that they were on it. In that case, a gastroenterologist was treating my Client for IBS, or Irritable Bowel Syndrome, and that Doctor was prescribing a not-very-common anti-anxiety medication in a sub-therapeutic dose (meaning a dose less than would be given to treat anxiety) to simply relax the colon. We discovered this as a result of the urine screen. At first, the Client and I thought the test gave a false positive, but a few phone calls later, she found out that her IBS medication was actually an anti-anxiety medication.

The larger point here is that it is necessary to explore this type of issue BEFORE the urine test. In the case where a person is using, pursuant to proper medical treatment, what the DAAD would consider a "risky" medication, it will be necessary to procure a very specific letter from the Doctor explaining that he or she knows the person is in recovery from an alcohol problem, but is using the medication anyway, under controlled and monitored conditions, because there is no suitable alternative. For what it's worth, I have to write this letter; while the Doctor's expertise is in medicine, knowing exactly what needs to be said in a License Appeal, and how to say it, is my job.

Another common problem pops up on the "Lifetime Abstinence" section of the Evaluation. It wasn't that long ago that this section was entitled "Lifetime Relapse History." The name of the section changed, but neither the information sought, nor its application to a License Appeal, is any different. The DAAD has two real concerns:

First, that a person is a "chronic relapser." Nothing can undercut the confidence in someone declaring that they've quit drinking like hearing they've done it lots of times before.

Second, that a person has had some long-term abstinence, only to "fall off the wagon." The DAAD is really concerned when a person's current period of reported abstinence is much less than the previous period of abstinence.

Not everyone has had any period of prior abstinence. Some people drink right through Probation, even though they're not supposed to. Sometimes, a person will give it a go for a few weeks, or a few months, and then start drinking again. How this is presented to the Evaluator is important. While honesty is the generally the best policy, common sense plays a role in tempering what might otherwise be a brutal truth. No one would suggest showing up at a grade school and telling all the first graders that there is no Santa Claus. Nor would it be a good idea to tell your boss that her new hairstyle makes her look fat. The decision about what to say, and how to say it, is best reached after some careful consideration, and that consideration should be made within the context of the "big picture" of the Substance Abuse Evaluation, meaning other factors may influence how a person's lifetime abstinence history is presented.

In this second installment, we covered how the DAAD's "reinterpretation" of the alcohol screening test (known as the "Testing Instrument) can lead to its having issues with the diagnosis ultimately reached by the Evaluator. I pointed out that my formal education in alcohol and addiction issues often enables me to help prevent this kind of a problem from occurring. We also looked at how a urine test can produce a result that creates the appearance of tampering or drug use, even though that's not the case. Finally, we saw how a person's relapse history, or lack thereof can signal big problems with any notion that they are really Sober, and likely to stay that way.

In Part 3, we will conclude our examination of the Substance Abuse Evaluation and the problems that can affect it by covering its most important section, the prognosis that a person will remain alcohol-free for the rest of his or her life. We'll also look at how that prognosis, even if it seems "good enough" at first glance, can be called into question and undermined by the final section of the Substance Abuse Evaluation, the Continuum of Care Recommendation.

The Secretary of State's Driver Assessment and Appeal Division (DAAD) operates under a very strict set of rules. I have written a whole numerous articles detailing how those rules work. One aspect that helps to explain why so many people who try a License Appeal on their own, or use some Lawyer who claims to "do" License Restorations and then loses, is the opening sentence of the ultra-important Rule 13:

"The hearing officer shall NOT order that a license be issued, unless the petitioner proves, by clear and convincing evidence, all of the following...(emphasis added)."

A License Appeal begins by filing certain paperwork with the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). Required amongst those documents is a Substance Abuse Evaluation(please note that a new form will be required by the DAAD as of April 1, 2013). This is usually the first thing read by a Hearing Officer, and is really the foundation of any License Appeal. Of course, the first thing the Evaluation must properly list is the name, address, date of birth and Driver's License number of the person who submits it. All it takes in the busy world in which we live is for an Evaluator to be working on his or her computer, and then turn away for a moment, perhaps to take a phone call, and then overlook verifying a person's Driver's License number or correct address.

A real life example of the mess this can create occurs if a person, who now lives out of state, comes in for an Evaluation, bringing a driving record that lists their former Michigan address. One moment's distraction can result in the evaluator using the address on the driving record (this is usually the right address, for most people, after all) to identify the person being evaluated. This, in turn, can create a problem at the Hearing, when the now out-of-state person requests a Clearance of the Michigan hold on his or her driving record rather than the Restoration of a Michigan License, and the Hearing Officer points out that the Evaluation provides a Michigan address, and questions the person's true residency. While this doesn't sound like a big deal, the inevitable next question from the Hearing Officer is something like "what else isn't accurate or true in this Evaluation? Didn't you read it?"

Another common but simple mistake that will cause an Appeal to be denied right out of the gate is not listing all of one's DUI convictions. Sometimes, really old convictions don't show up on the driving record a person gets from the Secretary of State. Other times, out-of-state convictions don't show up, or at least not at first. In fact, sometimes, convictions show up years later. The workaround here is really simple: Tell the truth. List every DUI conviction you have. In cases where those convictions are really old, and/or out of state, disclose them with as much, or as little, specificity as you can. This is where I help. I have my own "Substance Abuse Evaluation Checklist" that I complete as I meet with my Client for about 3 hours BEFORE he or she ever has an Evaluation completed. I do this to make sure there are no problems with the Evaluation, and that nothing is left out or not properly explained or presented to the Evaluator. My Client gives this Checklist to the Evaluator. This way, I have no worries. I can rest assured that I've clarified, disclosed or explained everything.

Think about that for a moment: "Clear and convincing" is the standard of proof one must make to win a License Appeal. Defining that is beyond the scope of this article, but we can steer around having to do so by noting that, if the person deciding the case has any unanswered questions, or wonders about the meaning of something, whatever else, the evidence presented to them was not clear and convincing. At a minimum, clear and convincing means not having unanswered questions.

Another common (and completely avoidable) problem arises when a person doesn't disclose any other, non-driving convictions (there is a separate section for this on the form) they have. If the charge involved any use of drugs or alcohol, then the DAAD wants the Evaluator to know about it. After all, if a person's last DUI was in 2007 but he or she was convicted of a Domestic Violence or Disorderly Person charge in 2010, and they had been drinking, it means the negative consequences of their drinking were still relevant in their life up to that point, at least. Even if alcohol wasn't involved, having an undisclosed conviction turn up is always bad news, because it calls into question your honesty.

Next, we come to listing your BAC results from your DUI cases. Even inadvertently providing BAC results that are inaccurate creates a huge mess that can often send a License Appeal crashing. The Substance Abuse Evaluation form has a specific box that asks for a person's BAC test result for each of his or her DUI cases. From the Hearing Officer's point of view, if an Evaluator doesn't know ALL of the correct details of a person's past alcohol and substance use history, including the person's DUI and Criminal history, then there is no way to really tell whether what was left out, or otherwise provided incorrectly, would have made any difference to any of the conclusions reached by that Evaluator within the Evaluation itself. Remember, an unanswered question is bad news.

A common example of this kind of error occurs with trying to remember your own BAC results. Assume Dan the Driver lists 2 DUI's, and tells the Evaluator that at his first, in 2006, his BAC was .10, and that at his second, in 2010, his BAC was .14. Although Dan isn't sure of his actual BAC results, he has no reason to lie, simply reports what he remembers. Later, during his Hearing, the Hearing Officer points out that his BAC scores were actually .14 and .19, respectively. In denying Dan's Appeal, the Hearing Officer notes that because he is unsure of what difference, if any, having the correct BAC scores would have made to the Evaluator, and ultimately, the Evaluator's conclusions, Dan is found to have not met his burden of proving his case by "clear and convincing evidence."

It doesn't have to be this way. While Dan shoulders some of the responsibility for providing the wrong information, the Evaluator has no real way to double-check Dan's information. The Evaluator cannot be both an Evaluator and a Lawyer. This is where my Substance Abuse Evaluation Checklist comes in handy, and why I think it's so important as a safety precaution; it provides an assurance that everything is listed (or not), as it should be. In the case of Dan the Driver and his BAC scores, I'll make sure that he doesn't misread his driving record (a more common mistake than you can imagine) and that he does not, under any circumstance, wind up providing incorrect information to the Evaluator, even if that means he doesn't provide any BAC scores.

Failing to list all the classes or counseling a person has undergone is another frequent and costly omission, particularly when these were done years and years ago. Looking at the relevant section of the Substance Abuse Evaluation, one cannot help but be intimidated by the degree and specificity of the information requested. It almost looks like the DAAD wants a person to attach or summarize their treatment records. Worse yet, it seems the DAAD will "punish" a person for providing wrong BAC results, so the prospect of leaving something out is frightening. Yet here, things change. As it turns out, most of my Clients cannot give specific dates for their classes, counseling, impact panels or treatment, and sometimes can only guess at the exact kind of program they attended, and when. The biggest mistake is to simply omit something because you don't have exact details. This is another point where I make sure my Client understands how to present this information, even if they can come up with nothing more specific than listing an "alcohol education class in approximately 1997," or something like that.

The risk of omission here is huge. It is ALWAYS the case that anyone who develops a drinking problem needs multiple exposures to "the message" before any of it ever sinks in. In other words, it takes numerous attempts to get a person who ultimately develops a drinking problem to take a step back and really analyze his or her relationship to alcohol. There's probably NEVER been anyone who, after a first DUI, attends some type of Victim Impact Panel, comes out and declares, "Wow, I suddenly get it! I now recognize that I have a drinking problem; I'm going to quit!" Instead, it usually takes repeated exposures to get a person to "see the light."

Thus, failing to list any kind of class, counseling session or program that you've ever done, relative to your drinking, is a big mistake.

AA attendance has to be accurately listed, as well. To be clear, most of my Clients have done some AA, but no longer go. By contrast, some of my Clients are still active in AA (and that's always helpful), while others have never gone. About the last thing a person should do is come across as having really been into AA if they weren't. There are few things more awkward than being asked about what you got out of regular AA attendance when the real answer is "nothing." Most people go for a while, learn what they need to, and move on. That's fine, but don't try and pretend that AA was a huge part of your life, especially because it's NOT necessary in order to win a case that's otherwise properly prepared.

There is really a lot to this part of the Evaluation. When I meet with a Client for the first time (and, as I noted, that meeting lasts about 3 hours), it is at this point, as we're going over the Substance Abuse Evaluation and my Substance Abuse Evaluation Checklist, that I say "we're going to go off the Reservation for a while here." As much as accurately "listing" AA attendance (or the lack thereof) is important, it is what I call the "take away" from that attendance, and from your time in counseling or education or rehab that is so critically important. We're going to really dissect what you learned, and what tools you developed to make sure you don't ever drink again. For the purposes of this article, we can leave it that any AA attendance must neither be overlooked nor exaggerated.

Having covered the personal information and a person's attendance at various kinds of educational, rehabilitative or support groups, we'll end this first installment. In Part 2, we'll continue our examination of the things that can go wrong with a Substance Abuse Evaluation by picking up at the point where the Evaluator administers the written alcohol assessment test.

In a previous, 2-part article, I took a sort of "anonymous" look at the 5 Hearing Officers at the Livonia branch of the DAAD, where I have all of my License Appeals heard. The same 5 Hearing Officers are still there, and nothing has changed in the time since I published those installments, so there is really nothing to update about them. Yet the whole concept of the role of the Hearing Officer is so critical to how I prepare my cases (and very relevant to why I provide a win Guarantee) that it needs to be reviewed from time to time.

It's easy to get caught up in the fixed, almost mechanical requirements of a Michigan Driver's License Appeal. The process starts with a Substance Abuse Evaluation. I start by spending 3 hours with a new Client just to prepare them to undergo that Evaluation. Letters of Support need to be written, and I spend a lot of time "correcting" and editing them. When all of this paperwork has been completed and reviewed and made "just right," it's filed with the State and a Hearing date is eventually given. Part of the notification of the Hearing date is the assignment of the case to a particular Hearing Officer. The Hearing Officer is the opposite of fixed, or mechanical. Different Hearing Officers have different backgrounds, concerns, life experiences and perspectives that influence how they evaluate the evidence in and ultimately decide a License Appeal. The Hearing Officer is, in that sense, a fluid variable in a License Appeal.

To complicate that even more, you don't know who this "fluid variable" in your License Appeal case will be until AFTER it's filed. My job would be much easier if I knew, in advance, to which Hearing Officer any particular case would be assigned. Precisely because the assignment of cases is random (and that really is the only way to make it fair), I have to consider the idiosyncrasies of all of the 5 Hearing Officers before whom I have my cases heard as I prepare each one.

This means, for example, that if a person has used any potentially addictive or mind or mood altering medication after the date of their last drink, I have to prepare the case as if it might go in front of the one Hearing Officer most concerned about that issue (identified as "The Doctor" in the previous 2-part installment about Hearing Officers) and before whom every "I" must be dotted and every "t" crossed. Not doing so could be a fatal mistake, even though there is an 80% chance the case may be assigned to one of the other 4 Hearing Officers. This means I have to get the proper Doctor's letter before the case is ever filed, and make sure the Evaluator receives a copy so that she can include its analysis in her Evaluation.

Accordingly, considerations about the Hearing Officer are relevant even before the case is ever assigned to one. This is why I have all of my cases scheduled in Livonia, because at least I only have to keep a handle on 5, albeit 5 very distinct personalities. Fortunately, regular and repeat experience in hundreds upon hundreds of cases before them has exposed me to the gamut of how they see things. Even so, as each case I handle has its own story, or theme, I have to review it in light of the way each of the 5 different Hearing Officers will consider it. This means I have to make allowances for and prepare for certain things that there is only a 1 out of 5 chance that we'll actually have to deal with. To put it another way, I have to take into account things that there is an 80% chance will never come up. But doing things properly means doing just that...

To lessen the confusion a bit, we should start off by pointing out that all of the Hearing Officers are going to ask a core group of the same questions. This is only logical. "When is the last time you consumed any alcohol?" is a guaranteed question no matter who is deciding a License Restoration Appeal.

Beyond that, each of the Hearing Officers has his or her own areas of particular interest. Even though those may be rather different from one Hearing Officer to the next, it might be helpful to reiterate why the Hearing Officer has his or her own particular concerns. In a License Appeal, a person has to prove, by what's called "clear and convincing evidence," that his or her alcohol problem "is under control," and (most important of all), "likely to remain under control." Thus, the Hearing Officer is trying to confirm that a person has really quit drinking, and that the person has essentially internalized the notion that they can never drink again. In a very real way, the Hearing Officer needs to make sure that a person is a safe bet to remain alcohol-free. The inquiry that satisfies them on that point (or not) will of course be rather individualized.

Once a case has been filed (and in my Office, that means it has been checked and re-checked first), it takes about 6 weeks to receive notice of a Hearing date, and the identity of the Hearing Officer to which it has been assigned. Once we know who will be deciding your case, it means that, when the time comes for our pre-Hearing "prep session," we will know exactly what will be coming, and how to prepare for it. As I have pointed out before, not only does each Hearing Officer have his or her own particular areas of concern, but some even have what amounts to one set of questions for someone who still attends AA, and a different set of questions for someone who does NOT go to AA. Accordingly, the facts of each case are an important part of preparing for the Hearing, and must be reviewed in light of which Hearing Officer will be conducting it.

Because Hearing Officers are people, they bring a decidedly human element to the License Restoration process. That human element is fluid, and messy, and, at times, can seem unfair or unpredictable. Fortunately, because I have all of my cases scheduled in Livonia, I can at least limit those variables to just 5 Hearing Officers, and I have a good handle on each of them. By knowing the Hearing Officers, I can make sure your case will meet the standards they expect, and will make sure you're ready for whomever will be deciding your Appeal. This, in turn, allows me to Guarantee a win in every case I take.

For the most part, the underlying reasons for this should be rather obvious. In an earlier article about Sobriety, I pointed out that people who are truly sober understand the meaning of "Sobriety," whereas people who don't really understand the meaning of "Sobriety" will mistakenly equate it with simply not being drunk, or not drinking to extremes. "Sobriety," in the sense we're discussing here, is more a state, or state of mind, than just the absence of intoxication. In this way, "Sobriety" implies that a person previously had a problem with alcohol has decided to give it up for good.

Because the language we're using here is precise, we must differentiate the general concept of "abstinence" from the more specific meaning of "Sobriety." Abstinence means to abstain. If we're talking about someone who has had a struggle with alcohol or drugs, abstinence simply means, "not using." Thus, a person can be put in Jail, meaning they've been forcibly separated from the ability to drink alcohol for a given period of time. Even if they desperately want a drink, and count the days until they're let out and can drink again, that period of time during which they were in Jail and could not drink is a period of abstinence.

Such a period without alcohol is NOT, however, a period of Sobriety. This distinction is a good litmus test for the reader's understanding of "Sobriety." If you understand the above example, even if more by instinct than anything else, then you have a concept of the real meaning of Sobriety. In that sense, Sobriety requires abstinence, but abstinence does not require Sobriety. In order to be a real candidate to win a Driver's License Restoration Appeal, this should all make perfect sense. If it does not, then we've got some work to do...

Part and parcel of the process of becoming sober means acquiring a basic understanding of certain notions about alcohol (or drug) use. When a person's use of alcohol or drugs becomes so problematic that they have to separate themselves from such use, they learn that they must give up using all potentially addictive and mind or mood altering substances. It is a given that if the alcoholic is separated from his booze, but has access to something like Xanax, he or she will soon enough use it as a substitute. The same thing applies when a person with a drug problem is separated from drugs, but has alcohol available. A person with a drug problem will always be told that he or she must not only abstain from his or her substance of choice, but also not drink alcohol, either. In countless cases, such individuals have replied that there is nothing to worry about, because they never liked alcohol anyway, only to wind up transferring their addiction to alcohol as a substitute, and usually in a relatively short period of time.

The bottom line is that once a person develops a problem with ANY substance, be it either alcohol or drugs, getting better, as in recovering, necessarily involves abstaining from the use of any other potentially addictive or mind or mood altering drugs. You can't "get sober" by giving up getting drunk, only to start getting high instead, nor can you "get clean" by giving up getting high, only to start getting drunk, instead. This is pretty basic recovery stuff. Anyone who has spent any time in any kind of outpatient treatment program or around the tables of AA should know this. And that means that if a person knows this, they know that marijuana (or any potentially addictive or mind or mood altering drug) should be avoided at all costs, unless absolutely medically necessary and without suitable alternative. Thus, a person undergoing a brutal cycle of chemotherapy may have a much better "medically necessary" or "without suitable alternative" argument for using marijuana than someone who claims chronic back pain.

The larger point here is that anyone who is really into their recovery knows that they need to avoid potentially addictive or mind or mood altering substances. This is where a real understanding of "Sobriety" comes into play. A person who is really and truly sober, meaning a person who has committed him or herself to remaining alcohol and substance free, already knows that "Sobriety" means not getting intoxicated by any means. It means NOT altering the state of mind in any way. It means that if you are recovering from a drinking problem and you hurt your back, you tell your Doctor that you're in recovery so that he or she can either prescribe a non-narcotic pain reliever, or very closely monitor a limited use of a narcotic on a limited basis.

Anyone with a medical marijuana card clearly does not understand the nuances of this. If you have a medical marijuana card, it means you're understanding of "Sobriety" isn't complete. Because of that, it means you won't win a License Appeal. And this doesn't even begin to touch on the subject of the required urine screen that's part of the Substance Abuse Evaluation that must be filed to being a License Appeal.

This does not render a person "dead in the water," but if you do have a medical marijuana card, or even if you've applied for one, we're going to have to upgrade your understanding of the nature of your problem and the meaning of "Sobriety" quite a bit before the state will ever approve a License. About the LAST thing you should do is blunder into a License Appeal when you have a valid medical marijuana card. Instead, one of the first things you should do is take a step back and call me. I can help a lot more before you make a mess out of things by having a License Appeal Hearing while you hold a medical marijuana card. And even if have gone in and done just that, I can still help with your next Appeal, but there certainly will be a lot of work to do.