Losing a Michigan Driver’s License Restoration Appeal Because of a “Questionable/Insufficient” Substance Abuse Evaluation – Part 1

In previous articles within the Driver’s License Restoration Section of this blog, I have written about why so many “do-it-yourself” License Appeals lose, as well as those handled by Lawyers who claim to “do” License restoration cases, albeit not as a specific concentration of their Practice. In most of those articles, as in this one, I have begun by pointing out that “Rule 13,” which governs Michigan Drivers’ License Appeals (and applies equally to Appeals seeking either Restoration of a Michigan Drivers’ License, or a Clearance of a Michigan “hold” on a person’s Driving Record) mandates that the Hearing Officer deciding the case “shall not order that a license be issued to the petitioner unless the petitioner…” proves their case “by clear and convincing evidence.”

This language from Rule 13 sets the stage for EVERY License Appeal to either win, or lose. However, saying that is a lot like saying that in any sporting contest, the person or team with the most points wins. Such an oversimplification tends to ignore the importance of things like preventing the other side from scoring, and not being disqualified for fouls or illegal moves. In other words, there is a lot more to it than that.

Rejected copy3.jpgIn this article, we will look at a specific, very common reason so many License Appeals are Denied; that the Substance Abuse Evaluation filed with the Appeal was “questionable/insufficient.” Rather than focus on the general application of the standard of proof required under Rule 13, or the various legal issues specified within the Rule, we’ll examine this real-world reason people are often turned down. This will be a serious and long article, and because of the amount of detail and information contained in it, will be broken in to 3 sub-parts.

At this point, anyone who has read this far is either a detail-kind of person, like me, and hungry for knowledge, or has already previously tried a License Appeal and lost. And if the reader is in the latter category, there is a good chance that, within the Order of Denial from that previous attempt, it is noted that the Substance Abuse Evaluation submitted as part of that Appeal was “questionable/insufficient.”

What does that mean? And how does it relate to Rule 13?

We’ll answer those questions in turn.

As I have pointed out on both my website, and in the various articles about this subject within this blog, the Substance Abuse Evaluation is the very foundation of a License Appeal. This is why, in my Office, my FIRST meeting with a Client is scheduled for about 3 hours, and is focused almost entirely on preparing the Client to undergo the Evaluation.

It is important to note the timing of this: I need to meet with the Client for 3 hours BEFORE they go and have their Evaluation completed. Meeting after the fact is like buying an instant lottery ticket; whatever is in there is already in there, meaning it’s either a winner or a loser, and no amount of talking about it is going to change what has already been printed.

Sometimes, when a person loses a License Appeal and the Denial Order points out that they have submitted a “questionable/insufficient” Substance Abuse Evaluation, the person cannot figure out why. Perhaps they re-read the Evaluation, and do not see what’s wrong with it. The Evaluation may even seem favorable, and give them a “good” or “excellent” Prognosis.

It’s at this point that people become frustrated with the Evaluator, and, if they tried this Appeal with some Lawyer who represented that he or she “does” License Appeals, with them, too. After all, they paid money to someone who took it with at least the implicit understanding that they knew what they were doing. And in the final analysis, it appears they did not.

This is a problem, and a very real one. I, for one, have long believed that there should be a process to certify those Professionals who do Substance Abuse Evaluations. In speaking with a Hearing Officer I know, I have learned that the idea has come up within the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD) before, but has been unable to get off the ground. Whatever the reasons for that, we are left with a situation where, at least from where I sit, the majority of Evaluations I see in cases where a person hires me after having lost before were simply not done correctly.

Let me be clear about this: Many of the License Appeals I handle are for people who have already filed before, and lost. Many of those Appeals are “do-it-yourself” jobs, but plenty were put together by those “I do License Restorations, too” kinds of Lawyers to which I have been referring. However it was done, when one of those people comes in to hire me for their next Appeal, I cannot help but notice that many of them have lost because they submitted what the State determined to be “a questionable/insufficient Substance Abuse Evaluation.”

And while it is true that the Evaluator is probably the first in line to take the blame for such a loss, if there was a Lawyer involved in the process, then he or she should almost always take the final and ultimate blame. Beyond preparing the Client for the Evaluation, the Lawyer’s job is to carefully review it prior to submitting it. If something isn’t right, it needs to be fixed. And if it cannot be fixed, then that Evaluation needs to be discarded. You absolutely CANNOT win a License Appeal with a flawed Evaluation. In fact, in such a case, you’ve lost before you even started.

In over 21 years of Practice, I’ve seen hundreds and hundreds of legally inadequate Evaluations. In fact, I’ve only seen a handful of places that consistently do a “good” job completing License Appeal Substance Abuse Evaluations. And by “good,” I DO NOT simply mean some joint that will crank out favorable reports for anyone who steps up and pays their Fee. Actually, I mean quite the opposite.

Any professional who does a “good” job on an Evaluation will just as quickly NOT crank out a favorable report as they will one which is, in fact, favorable. In other words, having the requisite integrity to be honest, and produce a clinically accurate Evaluation is a necessary component of producing a “good” evaluation. The State is all too familiar with those “shysters” who will crank out favorable report after favorable report, and they can smell that kind of quackery a mile away.

Beyond those places that are willing to sell their integrity by selling anyone a favorable Evaluation in exchange for their Fee, the more common problem is that an Evaluator simply does not know what he or she is doing, at least as far as completing the State form for a License Appeal.

Part of the problem, I think, lies in the very term “Substance Abuse Evaluation.” This is a rather general and vague term. It can be applied to the process of evaluating someone for an alcohol or drug problem as part of a Court case, or as a prerequisite to being placed in a rehab program, or to determine what kind of counseling a person should have. It can also refer to a person taking a specific diagnostic alcohol and/or drug use test, like the kind people take as part of the Probationary interview when they are dealing with a DUI. As a result, almost anyone with the credentials to score such a test, or interpret a more complex diagnostic test thinks, “I can do that.”

The problem lies in the fact that the State “Substance Abuse Evaluation” form not only requires those credentials and skills, but also seeks very specific information in certain areas, and does not seek what might at first appear to be clinically relevant information in others. This is probably just a complicated way of saying that the Evaluator has to really know what they are doing.

Even if an Evaluator gets it right, they often don’t that, nor do they know why. In the usual case, a person will take the Evaluation they pay for and submit it. If they win, that’s great. If they lose, they’ll often look around for someone, like me, who concentrates in License Appeals and go to whatever place I recommend to have their new Substance Abuse Evaluation completed . How many people or Lawyers do you think will call the Clinician up after a loss and offer to explain the State’s requirements, or point out where the Evaluation fell short? This means the vast majority of people who “do” Evaluations never hear anything back about them, good or bad. Without such feedback, how can they know what they’re doing right, or wrong?

When the State Denies an Appeal, and calls the Substance Abuse Evaluation “questionable/insufficient,” it means that the form either reaches conclusions that are not adequately supported within the body of the Evaluation itself, or the form was not completed properly. Whatever else, it means the person paid for something that wasn’t done correctly.

For example, if Don the drinker has 7 prior DUI’s, and went in for his Evaluation and told the Evaluator that he has been drinking daily for about 21 years, and then one day, about a year ago, decided to quit, without ever having gone to AA or getting any kind of counseling, the State would have a hard time accepting that Don’s Prognosis for continued lifetime Sobriety is “excellent.” Don would likely lose his Appeal, and the State would, amongst whatever other problems his Appeal presented, find out that his Evaluation was considered “questionable.”

However, if Don had done various stints in AA over a number of years, or had been through counseling or rehab a few times, and he finally made the decision to quit for good about 7 years ago, has not had a drop of alcohol since then, and in support of that changed his lifestyle, including his activities and the friends he hangs out with, the State would probably not be that skeptical of a “good” Prognosis for continued Sobriety.

And if Don’s Evaluation didn’t actually give a “Prognosis,” or didn’t give any supporting reasons for it, as required within the form itself, the State would find it to be “insufficient.”

“Questionable,” therefore, means that the Hearing Officer has real questions about the accuracy, correctness, integrity, or quality of the Evaluation.

“Insufficient” means that some part of the Evaluation was not completed, or not done correctly.

Rule 13, which governs License Appeals, requires that the person filing the Appeal prove their case by “clear and convincing evidence.” We could spend a few days discussing this, but for our purposes here, we can take it to mean that if the Hearing Officer has any unresolved questions about things like the accuracy, completeness, or integrity of the Evaluation, the person submitting it will have failed to prove their case by the required “clear and convincing evidence” standard. In essence, the Evaluation has to be perfect, or just about perfect, in order to help win a License Appeal.

It is also important to remember that the Hearing Officer is instructed, under Rule 13, to NOT order that a License be issued to the person Appealing, unless they prove their case by “clear and convincing evidence.” Again, we could spend days debating what that means, but for our purposes, we can take it to mean that the Hearing Officer is looking for a reason to Deny an Appeal, and not looking for the reasons to grant it. This always calls to mind the gymnastic events in the Olympics, where those young athletes twist and twirl and swing in inhuman ways, and then dismount and land with their feet not perfectly lined up together, and receive a score of 9.6, despite having done a flawless routine. Those Judges are looking for reasons to deduct points, not award them.

A Substance Abuse Evaluation that is judged to be “questionable/insufficient” will result in the person having been unable to prove their case by “clear and convincing evidence.” This, in turn, will result in a lost License Appeal.

As we will see, this kind of loss is completely avoidable. And if the reader has already tried and lost, then winning the second time, assuming the person is and has been Sober, and is likewise committed to remaining Sober, is, by contrast, completely manageable.

For what it’s worth, I guarantee I will win any Appeal I take the first time. If not, then I will continue to Appeal before the Secretary of State until I get my Client back on the road. In that regard, in the last 28 months or so, I have won 189 out of the last 191 License Appeals I have filed, giving me a success rate of over 98.95%. I don’t have much experience in losing….

By contrast, there is probably no Evaluator who has any idea of what percentage of the Evaluations they do winds up as part of a winning case or not. This is not their fault, but as asked above, how can anyone know what they are doing right or wrong without feedback?

In part 2 of this article, we will continue our examination of the reasons some License Appeals are Denied for a “questionable/insufficient Substance Abuse Evaluation,” and we will begin examining the actual Substance Abuse Evaluation form section by section, pointing out those sources of the most common errors that result in such a finding by the State.