Michigan Criminal Defense Lawyer Blog
A significant, if not majority portion of my Driver’s License Restoration Practice involves Representing people who have previously tried a License Appeal (without me as their Lawyer) and lost. These Clients necessarily fall into one of two categories:
- Those who hired some Lawyer who claimed they could “do” a License Appeal, and
- Those who figured they could do it on their own
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In some of my previous blog articles, I have explained that these people make the best, or “easiest” Clients a License Restoration Lawyer, like me, can have. They show up, eager to pay and ready to follow instructions. Whatever beliefs they may have had about the License Restoration process, and however much they previously thought that they knew enough to win, they have been humbled by the depth and scope of the process, and know that, in order to do it right, they need expert guidance. In this article, we’ll shift focus to a few of the most common reasons for that kind of lost License Appeal.
From my point of view, beyond simply offering guidance, I offer a Guarantee that if I don’t win any Appeal I undertake the first time, I will continue to represent my Client before the Secretary of State’s DAAD (Driver Assessment and Appeal Division) until they get their License back. This means that although a person may have lost without me, I want to make sure, and will guarantee, that they’ll win with me.
Despite the almost unlimited possible ways someone can lose a License Appeal, most that I see are for what is considered a “Questionable/Insufficient Substance Abuse Evaluation.” As we shall see, however, this one simple category encompasses a rather wide panorama of problems.
I have also pointed out in some of my prior articles that way too few Substance Abuse Counselors actually know how to complete, or “do” a DAAD Substance Abuse Evaluation. This is not really the fault of those Evaluators, but that lack of blame is cold comfort for anyone whose efforts to get back on the road are rejected.
In their defense, very few Evaluators ever receive any feedback whatsoever about the quality of the Evaluations they produce. Think about it; if Ernie the Evaluator does a Substance Abuse Evaluation (often called an “SAE”) for someone, and that person uses Ernie’s Evaluation in their License Appeal, and loses, how likely are they to call him and point out what information was missing, or what was wrong, or otherwise not done correctly, according to the Hearing Officer who decided the Appeal? Normally, that person will just try again next year, and make a point to go to some Evaluator other than Ernie
By the same token, if Ernie completes an Evaluation for someone, and they win their License Appeal, what are the chances that they’ll call him up and explain what he got right? In fact, what are the chances that anyone beyond the Hearing Officer knows really knows what Ernie did right?
This is why I use a very competent local Clinic to do my Client’s Substance Abuse Evaluations. Over the years, I have had numerous conversations with their Evaluators about exactly what information the DAAD wants, what it doesn’t, and how it interprets things. Beyond the Clinic local to my Office, for backup, I use another highly qualified Evaluator with decades of experience doing SAE’s. Given that the Substance Abuse Evaluation is the very FOUNDATION of a License Appeal, this makes perfect sense.
In this regard, a major problem resulting in a Denial for a “questionable/insufficient Substance Abuse Evaluation” is that the Evaluation itself was not completed correctly. Common shortcomings include:
- Failing to list all Convictions,
- Listing inaccurate BAC (Bodily Alcohol Content) scores,
- Not providing a “poly-substance diagnosis” when a person has issues with drugs, as well as alcohol,
- Failing to provide a proper DSM-IV Diagnosis,
- Improperly or incompletely explaining a person’s Abstinence or Relapse history,
- Omitting a formal and proper Prognosis, and
- Providing a Continuum of Care Recommendation that conflicts with the person’s Prognosis.
These are some of the more common things the Evaluator gets wrong. This doesn’t even begin to take into account how the information provided (or not) to the Evaluator by the Client can result in the Evaluation being judged “questionable/insufficient.”
I see all kinds of mistakes made by a Client who had not been properly prepared to undergo a prior Evaluation. Obviously, if they tried the Appeal on their own, there was no preparation, so, at least in that sense, the certainly got what they paid for.
Under “Lifetime Conviction History,” for example, I see Clients reporting Drug Crimes that that were specifically kept off of their Record using things like HYTA or 7411 Status. These prior cases are not Legally considered “Convictions.” Yet without understanding the fundamental difference between what was just a prior charge as opposed to an actual conviction, the person has just made their Record look worse than it actually is.
And then there are Clients who forget to list a Conviction of some sort or another – including a DUI conviction – only to have the Hearing Officer point out that it’s on their Record. Talk about having egg on your face!
If someone forgets to list a prior Conviction, all kinds of problems arise. Even if they can convince the Hearing Officer that it was a completely innocent oversight, that Hearing Officer is likely to conclude that because the Evaluator didn’t know about a certain Conviction (particularly a DUI Conviction) there is no way to know whether, had it been disclosed, any of the conclusions reached in the Evaluation would have turned out differently. Remember, if the Hearing Officer is left with unanswered questions or has unresolved doubts, that typically means that the person Appealing has failed to prove their case by the required “clear and convincing” evidence standard.
I could literally go line-by-line through the Evaluation form and point out examples where either the Evaluator got it wrong, or the Client got it wrong, usually by not mentioning something, that in turn caused a License Restoration Appeal to be Denied. In the interests of keeping the size of this article manageable, however, I’ll fast-forward to a few more common and notable mistakes.
Believe it or not, even though the entire and rather obvious point of a Substance Abuse Evaluation (think about the very name of the document and the process it invokes: Substance Abuse Evaluation…) is to produce a Diagnosis of a person’s alcohol (and/or Substance Abuse) problem, as well as Prognosis for how likely they are to remain abstinent (meaning in Recovery), some Evaluators fail to provide an actual Diagnosis.
To be clear, some Evaluators will fail to make a formal Diagnosis in very box that requests a “Diagnostic Impression.” Worse yet, some Evaluators will go off the rails and write all kinds of high-brow analysis about the person and their problem, yet fail to provide an actual Diagnosis using terms like “Alcohol Abuse,” or “Alcohol Dependence.” You really can’t screw up an Evaluation more than by failing to provide the clearly requested information on it, yet this kind of shortcoming is not uncommon.
Another HUGE problem with some of the Evaluations I see is the lack of an actual Prognosis. This is really an extension of the failure to provide a Diagnosis, except that a Prognosis is really the main point of the Substance Abuse Evaluation.
Bear in mind that the most important Legal issue (or question) in a License Appeal is whether or not the person’s alcohol problem is “likely to remain under control,” meaning that the person is (or is not) a safe bet to NEVER drink again.
The “Prognosis” is the Evaluator’s conclusion and opinion on that question.
I have read Evaluations that have all kinds of mindless babble filling every line of the “Prognosis” section of the Evaluation form, going so far as to never actually give a formal Prognosis, and yet asking the reader to “see attached.” Of course, the “attached” pages are just unnecessary and useless lines of more babble. There really is almost never a reason for an Evaluation to use any more space than the form actually provides.
Another favorite trouble spot is near the end of the form, under the section entitled “Continuum of Care Recommendation.” Here, the Evaluator is asked by the State to identify what kind of counseling or support group therapy the person should do in order to stay Sober. If the person being evaluated is, in fact, really Sober, then the best and usual recommendation is that they keep doing whatever they’re doing. Thus, if Recovery Ron goes to AA once a week, then the Evaluator will normally suggest he continue with AA once a week. If Ron does not go to AA, but clearly lives what’s called a “Sober Lifestyle,” then the Evaluator should, and would be most helpful to recommend that Ron just “continue with his Sober Lifestyle.”
The problem, at least in my opinion, is that way too many Evaluators are hung up on AA and too quick to recommend that anyone who has or ever had a drinking problem go there. Sometimes, these Evaluators mean well; it’s not that they always think a person needs to go to AA, as much as they are suggesting that the person go to “strengthen their Sobriety.” Certainly, going to a meeting once or twice a week could never hurt a person’s Sobriety, but it’s hardly necessary for those who have been able to maintain it without AA involvement.
This becomes even more problematic when you realize that this Recommendation is uniformly interpreted by the Hearing Officers not as a mere suggestion, but as an integral part of the diagnosis and prognosis of the Evaluation. An all too common real-world example occurs when a person’s Evaluation gives a “good” Prognosis for continued abstinence, and the Continuum of Care Recommendation suggests something like weekly AA attendance. Perhaps the Evaluator felt the person does indeed have a “good” Prognosis for continued abstinence, and is merely suggesting AA as a way to reinforce, or strengthen their Sobriety, and not as requirement just too maintain it.
However, the Hearing Office is likely to see that “good” Prognosis as conditional, at best. Instead of interpreting the Recommendation to hit some AA meetings as a kind of “it wouldn’t hurt” kind of suggestion, the Hearing Officer will conclude that the person’s Prognosis can only be good IF they began doing AA (or whatever the Evaluator Recommends) with the frequency at which it was suggested.
This may sound a bit confusing to anyone who hasn’t lost a prior License Appeal, but it is no doubt perfectly clear to anyone who has been through this. Beyond needing a Prognosis of either “good” or “excellent” to win a License Restoration case, the Evaluation cannot make a Continuum or Care Recommendation that calls for anything other than what the person is doing to maintain their Sobriety. In cases where a “good” Prognosis is given, and then followed by a Recommendation that the person begin (or return to) attending AA or some counseling that they are not currently doing, that Recommendation undercuts the “good” Prognosis and will cause the Appeal to lose.
These pitfalls are easily avoidable if a person hires a true-blue Driver’s License Restoration Lawyer who makes sure they are thoroughly prepared to undergo their Substance Abuse Evaluation, and that it is completed by a competent and knowledgeable Evaluator. After the Evaluation has been completed, it needs to be reviewed with a fine-toothed comb by the Lawyer to make sure it is both Legally adequate and sufficient, as well as appropriately favorable.
In my Practice, I walk the Client through every step of the License Appeal process, beginning with preparing for, undergoing, and then reviewing the Substance Abuse Evaluation. This attention to detail allows me to offer my win Guarantee. Anything less than that degree of attention to detail and a similar Guarantee is, I suppose, the reason I meet so many new Clients who have tried a License Appeal before, without my help, and come to me the second time around, when they’re serious about winning.