Losing a Michigan Driver’s License Restoration Appeal Because of a “Questionable/Insufficient” Substance Abuse Evaluation – Part 2

In Part 1 of this article, we began examining the role of the Substance Abuse Evaluation in a License Appeal. I defined that role as “foundational.” From there, we examined why so many Evaluators feel qualified to “do” a Driver’s License Appeal Substance Abuse Evaluation, and what it means for the final product to be a disappointment and waste of money if the State declares to be “questionable/insufficient.”

In this 2nd Part, we will continue by examining how the very term “Substance Abuse Evaluation” can be part of the problem in finding an Evaluator who knows what the Secretary of State is looking for within that form, and then we will begin doing a section-by-section analysis of the form itself.

rejected stamp2.jpgPart of my success in License Appeals is no doubt due the fact that once I found a Clinic that did a consistently good job completing Substance Abuse Evaluations, I began communicating with them. I have actually gone in and met with their Counselors and explained what the State is looking for, and answered their questions about doing a proper job on the Substance Abuse Evaluation form. As a result, they have a detailed knowledge of what is important to the DAAD, as well as what is not. Ironically, this Clinic charges less ($199) than almost any other Clinic I have heard about, while managing to do a better job.

We can take from this that the term “Substance Abuse Evaluation” within the context of a License Appeal has a very specific, and different meaning than it does in other contexts.

Recently, I met a Client who has been seeing a Substance Abuse Counselor for a number of years. This Client expressed a preference to have the Evaluation completed by that Counselor, despite my stated reservations, based upon my experience with so many individuals who assure their Clients/Patients that “I can do that.” The Evaluation came back last week, and it needs to be fixed. While not an outright disaster, it is clear to me that whoever did it does not have a clear picture of what the DAAD is looking for. As it stands, it is not good enough.

One of the requirements, clearly stated (although in very small print) on the Evaluation itself is that the actual Substance Abuse diagnostic test, along with the actual answer sheet the Client filled out be attached. In the case I just mentioned, it wasn’t. This is a common, but potentially fatal error. On top of that, the State form has various “dialogue boxes” where the Evaluator’s reasoning must be stated for reaching any particular conclusion, be it a Diagnosis or a Prognosis, or whatever else is being asked. This Evaluation came with an attachment sheet containing further explanations in a number of those areas. While that may, at first, appear helpful, in reality, it is not. Instead, it means the person doing the Evaluation does not quite understand exactly what is being asked, and cannot confine their responses to the space provided. There is simply no need, in ANY case, to “go outside the lines” of the State’s form.

Beyond the Clinic to whom I refer almost all of my Clients (and to which I have NO connection outside of appreciating their good work, and that happens to be only a few blocks from my Office), I work with a few other Evaluators, all of whom have very specific knowledge about the License Appeal process, and who regularly engage with License Appeal Lawyers, like me, in order to stay on top of what the DAAD wants included in an Evaluation, as well as what it finds irrelevant or unnecessary.

Despite my cautions, I doubt many Clinicians, when asked to do a “Substance Abuse Evaluation,” will study the form and wonder if they really know how to do it. After all, doing “Substance Abuse Evaluations” is part of their job description, right? And as the old saying goes, “you don’t know what you don’t know.”

In the final analysis, however, it is the Lawyer who is responsible for finding any such shortcomings in the Evaluation itself, especially before it is filed. However, if that Lawyer does not “specialize” in License Appeals, and, like all to many Counselors who “do” Evaluations, merely “does” License Restoration cases, he or she probably cannot see those shortcomings in the first place, because he or she does not what to look for. If it sounds like a vicious circle, it is. However, by hiring a real, bona-fide Driver’s License Restoration Lawyer in the first place, this kind of common and fatal error can be avoided at the outset.

Now, let’s look at some common errors made in completing the Substance Abuse Evaluation form. In order to follow along, the reader might find it helpful to pull out their old Evaluation, or click on the following link to download and print a copy of the Substance Abuse Evaluation form taken from the Secretary of State’s website. Once the reader has the form ready, we’ll go over it section by section.

Okay, ready?

The first part at the top of the Substance Abuse Evaluation form asks for name, address, and other personal information of the person Appealing. Would you believe that I have seen these forms come in with the wrong name and address? From the State’s point of view, it has no way to know if an Evaluation with the wrong name and address describes the person who submitted it, or, instead the person referenced at the top. I’ll say this again and again throughout this article; double-checking this is the Lawyer’s job. No matter who screwed it up in the first place, if an Evaluation is submitted with these kinds of errors, the Lawyer is equally, or perhaps even more at fault for not catching them.

Once in a while, I will have a Client who describes themselves as “anal,” (sorry about the visual there…) and fly-specks every word on the Evaluation. Often, those people will be apologetic about their particularity, but if there ever was a time to be a detail-person, reading over your Evaluation BEFORE it is submitted is about the best.

Next, the State wants a listing of the person’s alcohol and/or “drug” driving convictions. In addition, they want the date of the Convictions listed, along with a person’s BAC or the type of drug involved in the Offense. This section can be the “holy grail” of problems unless the person knows what to say, and the Evaluator knows what to ask. For example, the Evaluators I use REQUIRE a person to bring in a copy of their Driving Record in order to avoid any mistakes or confusion about the dates and kind of convictions they have.

In the interests of keeping the length of this article manageable, I cannot go into even a fraction of what is involved in preparing the Client to meet with the Evaluator, except to point out that, as I noted in the first part of this article, it take about 3 hours in my Office to do just that.

However, if there is one thing that will kill a License Appeal before it begins, it is listing an inaccurate BAC (breath or blood test score), particularly if the number provided to the Evaluator is lower than what was actually measured as part of the Arrest. In a way, it is unfair that the State asks this, without providing the information, especially in light of the fact that they already have it in the first place. However, in my Office, I make sure my Clients never run into this problem by making sure they know how to properly respond to this request for information, even if they have no clue what they blew back at the time of their DUI’s.

To connect the dots a bit here, the reason submitting an inaccurate, and more particularly, a low BAC number is so catastrophic goes back to the whole notion of having to prove the case by “clear and convincing evidence.” The Hearing Officer can legitimately ask, if they see numbers lower on the Evaluation form than those actually obtained by the breath and/or blood test, whether or not, had the Evaluator been provided with the actual, accurate numbers, any of their conclusions or of their findings would have been different.

In fact, the Hearing Officer can, (and will likely) conclude that he or she has no idea to what extent, if any, having had the correct BAC information would have affected the accuracy and integrity of the Substance Abuse Evaluation. Perhaps it would have had a significant impact upon the Evaluation. On the other hand, having given the Evaluator accurate BAC information may have only had a minor, or slight impact upon it. And it is also possible that there would have been NO difference in the outcome of the Evaluation had the Evaluator been given accurate, rather than incorrect, BAC information.

By not knowing, however, to what extent, if any, the difference between the BAC numbers provided to the Evaluator and the actual BAC numbers from the person’s Arrest would have mattered to any of the analysis or conclusions made by the Evaluator, the Hearing Officer will have questions. Unanswered questions. And, as we have discussed earlier, those unanswered questions equate to the person having failed to prove their case by “clear and convincing evidence.”

In other words, wrong BAC numbers will result in a finding that the Substance Abuse Evaluation is “questionable/insufficient,” and will, in turn, result in a lost License Appeal.

The next section asks for more specific information than a job application at NASA about any Counseling, Education or Treatment a person has had for their alcohol and/or drug problems. Properly responding to this more often than not omits much, if not most of the requested information. You didn’t read that wrong. Most people can hardly give a fraction of the information requested in this sections, and, curiously enough, at least in this one instance, that does not matter. I say “curiously” because any such lack of specificity in the section above the one about which we are speaking, regarding convictions, is fatal. Here, things a very different. Again, it would take volumes to begin to explain this in full detail, and this is, again, why that first meeting in my Office, dedicated to simply preparing the Client to undergo this Evaluation, lasts about 3 hours.

The following section asks about “Support Group” attendance. This almost always means AA. And a person either goes, or has gone, or never went. If the Evaluator knows what the State is looking for, then they can fill this section out rather quickly. By the same token, an Evaluator NOT familiar with the format in which the State wants this information presented, their responses can be all over the board, from straightforward to downright confusing.

The final section on the first page is a bit of a “cart before the horse” situation. In order to understand what I mean, the reader should look to the next section on the top of second page. You’ll note that the section at the top of page 2 asks about the “Testing Instrument” used to reach the Diagnosis requested in the section at the bottom of the first page. It has always seemed to me that one would ask about the test first, then the results, rather than the other way around.

At any rate, back to the bottom of page 1, the State is asking for the Evaluator’s Diagnosis of the person’s alcohol and/or drug problem. In that regard there is almost always only 2 such Diagnoses: Abuse or Dependence. Technically, or theoretically speaking, a person can also NOT have an alcohol or drug problem, and therefore have “No Diagnosis,” but in the context of a License Appeal, anyone with 2 or more DUI’s and/or “drug” driving Offenses will invariably be PRESUMED to have a problem. In fact, I know that the State feels so strongly about this, I won’t bother getting involved with anyone who wants to argue that they don’t have a problem. I’m in this to win, and that kind of reasoning is a guaranteed way to lose before you even begin.

This section is also one of the places where many Evaluations go way off the rails. Note that the State is asking for a DSM IV (Diagnostic and Statistical Manual 4th Edition) Diagnosis. In EVERY License Appeal, that Diagnosis can simply be stated as something like Alcohol Abuse, or Alcohol Dependence, and/or something like Cannabis Abuse, or Cannabis Dependence, and/or whatever other drug or drugs a person may have abused or been dependent upon in the past. In other words, the information required in this section will not even take up 1 complete sentence.

But that doesn’t stop some Evaluators from attaching additional pages! And, as I observed before, from the State’s point of view, that is not necessary. In fact, it signals that the Evaluator is NOT familiar with what the State is looking for. The Diagnosis is the Diagnosis. An explanation is neither requested nor required as to how it was reached, beyond the interpretation of the actual Screening Test referenced in the next section.

Perhaps the most common oversight I encounter is the failure of the Evaluator to actually attach both the Test, and the answer sheet the person filled out as part of the Evaluation. If you look, you will see that the Substance Abuse Evaluation form specifically instructs the Evaluator to “attach the actual instrument used.” This is where experience matters: even though the form itself says nothing about the actual answer sheet, any Lawyer who makes his or her living doing License Appeals will know it must be included. Ditto, of course, for an Evaluator who knows what the State means. Again, however, even if the Test itself is attached, the failure to attach the answer sheet, while originating with the Evaluator, should be, or should have been corrected by the Lawyer. If this is omitted, final blame rests with the Lawyer.

The form also asks for an interpretation of the Test’s results (NOT, please note, an explanation…) as well as how those result correlate with the Diagnosis set forth in the preceding section. Space is provided for the response.

Some Evaluators want to go off and write a textbook rather than simply answer the inquiry. There is simply NO REASON, EVER, for anyone to need to attach a separate sheet. The state does not want some long, wordy treatise (and given the length of this and many of my other articles, maybe it’s a good thing that I’m not an Evaluator…). Instead, it wants a short, crisp response to what’s asked. Honestly, anyone who thinks they need to say more doesn’t really know or understand the License Appeal process well enough to be doing Substance Abuse Evaluations for it in the first place. Sure, there may be a 1-in-200 cases exception, but unless there is really, and I mean REALLY something unusual about a person’s case, going “outside the lines” spells trouble.

In this second part of our article, we attributed part of the problem with a Drivers’ License Restorations Substance Abuse Evaluation to the very term “Substance Abuse Evaluation.” We put the final and ultimate blame for the submission of a flawed Evaluation on the Lawyer’s shoulders, because, in the end, it is his or her job to make sure any Evaluation submitted will NOT be rejected by the State as “questionable/insufficient.” We then began examining the various sections of the Evaluation form itself, leaving off with a discussion of the Testing Instrument(s) used in making the Diagnosis.

In Part 3, we will continue our examination of the remaining sections of the Substance Abuse Evaluation form, and then wrap up with a few observations about how to avoid losing a License Appeal due to a “questionable/insufficient Substance Abuse Evaluation.”