Michigan Criminal Defense Lawyer Blog
In Part 1 of this article, we began our examination of the things that can go wrong with the Substance Abuse Evaluation form that must be filed to begin a License Appeal, and how some of these errors can cause the Appeal to be denied without the DAAD ever having to consider the more important issues of whether the person’s alcohol problem is “under control,” meaning the person has stopped drinking, “and likely to remain under control,” meaning the person is committed to and has the necessary tools to permanently remain alcohol-free.
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.
To be fair, most Substance Abuse Evaluations that I see, except those done by the Evaluators to whom I refer my Clients, are not done correctly. There is no one to show most Evaluators what the DAAD wants in an Evaluation, and, truth be told, any Evaluator looking at the form will quickly conclude “I can do that,” not understanding that, like so much else in the whole License Restoration process, things aren’t necessarily what they seem. Beyond completing the Evaluation in the manner expected by the DAAD, however, things are complicated when the DAAD Hearing Officers try and assume the role of Evaluator and reinterpret the “testing instrument” used by the Evaluator. About the only thing one can do to avoid this is have a Lawyer, like me, who not only makes his living doing License Appeals, and thus understands the legalities involved, but is also formally educated in the Clinical side of things, and understands the language of the Evaluator.
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.
One of the toughest situations, and one that I deal with often enough, occurs when a person has gone before the DAAD before, won their License back, and then subsequently loses it after picking up another DUI. In order to win such a case, and really, in order to explain past periods of abstinence, a person has to be able to qualitatively differentiate those past periods from the present one. In order to do this, a person first has to be really and truly Sober, at least this time. There is no wiggle room on this point. I provide a Guarantee that I will win your License Appeal, but I only take cases for people who have honestly quit drinking. I absolutely require that a person be 100% committed to complete Sobriety. This is also a minimum requirement to satisfactorily explain how THIS period of abstinence is the real thing, while any previous periods were not.
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.