The 3 Main Reasons why Michigan Driver’s License Restoration Appeals lose – Part 1 – the Substance Abuse Evaluation

It is my job, as a Michigan driver’s license restoration lawyer, to know how to win a case. To accomplish that, I require that a person has really and truly quit drinking as a condition to take his or her case, but I also guarantee that I will win every case I take. Many of my clients have previously tried, either on their own or with some lawyer who says that he or she “does” Michigan license appeals, to win back their driving privileges (or get a clearance), and have lost because of a problem with the substance abuse evaluation. There’s a good chance that if you’re reading this, you lost a prior license appeal. In this article, we’ll look at 1 of the 3 primary reasons why people lose a Michigan driver’s license restoration case – the substance abuse evaluation.

This article will be a topical overview of substance abuse evaluations. I have made a detailed examination of just about every aspect of the substance abuse evaluation in other articles on this blog. I could literally write a textbook and still not scratch the surface of the more important facets of substance abuse evaluations. Because the substance abuse evaluation plays such a critical role in a license appeal, my first appointment with a new client takes 3 hours, and almost every minute of that time is spent preparing the person to undergo (and obviously do well on) the substance abuse evaluation. In the big picture of Michigan license reinstatement appeals, the substance abuse evaluation is the foundation.

Thumbnail image for number-12 1.2.jpgSometimes, even before examining a person’s order denying his or her appeal, I will read the substance abuse evaluation filed in the case. Without exception, I can point out the things wrong with it and then explain how and why the hearing officer denied the appeal. Having sat across the desk from countless clients and having read these orders, I even know the specific language often used by particular hearing officers. If your previous substance abuse evaluation caused your case to lose, and it was decided by hearing officer Bandy in Livonia, for example, it is almost certain that within that order, your evaluation is described as “questionable/insufficient.”

Hearing officer Modelski (also in Livonia) sometimes uses the language “woefully inadequate.” Whatever else, when the hearing officer deciding your case points out where your substance abuse evaluation falls short, you’ve already lost your case by a wide margin. When you read the order denying your appeal, it can seem like a written inventory of every possible shortcoming regarding your evaluation. As you deal with having to accept being without a license for another year, it can very much feel like the hearing officer was looking for every possible reason to deny your appeal…

If it makes you feel any better, he or she was.

A license appeal is not about a “judgment call.” These cases are not won by submitting evidence that’s “good enough.” Instead, the law requires states that “the hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following…” Read that again carefully. The hearing officer is being told NOT to grant a license unless things are proven by “clear and convincing evidence.” This is a negative mandate. Just change up the wording a little and imagine what a difference it would make if the rule said that “the hearing officer shall issue a license if the petitioner, by clear and convincing evidence, proves all of the following…”

Do you see how strongly the absence of the negative instruction changes things? When you read it carefully, you cannot help but see that the hearing officer is essentially directed by the law to look for reasons to deny your appeal. Important here is that of the issues you must prove (“all of the following”), the two most important are that your alcohol problem is “under control,” and, particularly relevant to the substance abuse evaluation, that your alcohol problem is “likely to remain under control.”

So now we’ve boiled things down to this: The hearing officer is told to not to grant any kind of license unless you prove, by “clear and convincing evidence,” that your alcohol problem is under control, and likely to remain under control. Now that we’ve identified the relevant legal issues, let’s try and put them in some kind of context.

Here’s the real deal: The DAAD, meaning the Michigan Secretary of State’s Driver Assessment and Appeal Division, knows the ugly reality that most people with a drinking problem simply do not get over it. That’s worth saying again: Only a small minority of people that develop an alcohol problem are able to stop drinking and get better.

By operation of law, when a person gets 2 DUI’s within 7 years, or 3 within 10, his or her license is revoked under the presumption that he or she has an alcohol problem. This is really just a legislative recognition of reality. I could explore this in detail and we could be here forever going over this stuff, but the bottom line is that your substance abuse evaluation is supposed to be a thorough clinical analysis of the likelihood that your alcohol problem will remain under control. To put it another way, the evaluation is educated opinion of a substance abuse counselor (evaluator) about the chances that you will remain sober for life.

This should reemphasize what I said before about the substance abuse evaluation being the foundation of a Michigan driver’s license restoration (or clearance) appeal. The state perceives every person who has lost his or her driver’s license because of multiple DUI convictions as having a drinking problem. The state knows that almost everyone who loses his or her license will eventually come and ask for it back. Most of all, the state knows that of those people who appeal for reinstatement, only a very small and select minority will have really and truly gotten sober. Thus, the bar to win a license appeal is set very high, to keep any risky person (meaning someone who isn’t completely (and as verifiably as can be) finished with alcohol for life) from getting back on the road. A natural consequence of setting the bar high enough to keep these risky people from winning a license back is that a fair number of really sober people will be denied, as well.

This is where I come in. If you’re really sober, we can get through this.

In the first place, lots of sober people wind up losing a license restoration appeal because of problems with the substance abuse evaluation itself, and not because of their sobriety. It is unfortunate, but while pretty much every substance abuse counselor will look at the state’s substance abuse evaluation form and figure that he or she can properly complete it, most cannot. That’s really the state’s fault, because “properly” completing the form requires some “inside” knowledge. In other words, the only way to know what the DAAD is really looking for is either to work closely with a lawyer like me, who will provide regular feedback about how the state “sees” things, or, like one evaluator I know (and use), to actually sit in on driver’s license restoration appeal hearings and see how the hearing officer interprets things.

In the real world, even if an evaluator gets it right most of the time, he or she has no idea why that’s the case unless it’s explained to him or her. In the same way, if an evaluator gets something wrong and a person loses the appeal (if you’ve lost an appeal because of a problem with your substance abuse evaluation, then think about this), the evaluator doesn’t know that, or know why, unless the person or his or her lawyer communicates with the evaluator after the loss and reviews specifically where the evaluation came up short.

I completely avoid this problem by using a small circle of evaluators with whom I have frequent and regular contact. “My” evaluators know what the DAAD is looking for in an evaluation, and what it doesn’t want to be bothered about. Moreover, before I ever file a case, I go over the evaluation with a fine-toothed comb to make sure that it is okay, and legally adequate, as well as favorable. Whatever else, I have to make sure that there’s nothing in, or missing from the substance abuse evaluation that will derail our license appeal. That’s a very important part of my job description.

If you lost your license appeal because of problems with the substance abuse evaluation, then you at least understand that the Michigan license appeal process really involves what I call a “million little rules.” When you’re ready to move forward and want to count on winning, I can help. As long as you’ve really quit drinking, I can get you back on the road. Call me when you’re ready to prepare a successful license appeal so that you can once again slip a valid driver’s license back into your wallet.

In the next installment, we’ll look at some common problems with the letters of support, and how a deficiency there can result in your request for reinstatement being denied.