Michigan Criminal Defense Lawyer Blog
In Part 1 of this series, we began our examination of the problems within a Substance Abuse Evaluation that will cause a License Appeal to fail. We looked at how even simple, little things like a name and address must be done correctly. After all, if these small details aren’t correct, what does that say about the really important stuff? We then went on to review how important it is to accurately list all of your DUI’s, your BAC results (if you can), any other convictions you have, and your treatment and support group (AA) history. I also noted that most of my Clients DO NOT currently attend AA.
In Part 2, we focused on the important role of the alcohol assessment test, and how the result of that test helps “suggest” a diagnosis. We also saw that a very common problem is the DAAD’s over-reliance on that test result in determining a proper diagnosis. From there, we looked at how issues with a urine screen can create the appearance of problems that aren’t really there, and how a person’s prior periods of abstinence can similarly give rise to the appearance of being a chronic “quitter” who just can’t stay “quit.”
In this final installment, we’ll tackle the most important section of the Substance Abuse Evaluation, the prognosis. It only makes sense that the Evaluator’s educated prediction about a person’s ability to remain Sober is “the big cheese” of the whole Evaluation process. We will also see how the final section of the Evaluation, the Continuum of Care Recommendation, can upset the whole apple cart. While I’ll go on to introduce this section as “last, but not least,” it is precisely because this section is often given the least amount of consideration by an Evaluator that it can tank an otherwise good Evaluation.
Everything we’ve covered thus far in both Parts 1 and 2 of this article eventually and inevitably leads to the ultimate goal of the Substance Abuse Evaluation – the Prognosis. At its simplest, this is the considered and professional opinion of the Evaluator about whether the person’s alcohol problem is “likely to remain under control.” This is really the answer to the $64,000 question, so to speak. If there is any “it all comes down to this” aspect of the License Appeal process, this is it.
Here again, what sounds easy at first gets rather complicated. Over the years, a number of Clinics and Evaluators made a quick, albeit short-lived fortune writing up glowing Evaluations that gave only the best prognoses for anyone willing to pay their Fee. The DAAD caught onto this with lightening speed. Those operations have come and gone like yesterday’s news.
Even with those concerns part of ancient history, there are plenty of other “prognosis” issues that arise with enough regularity to be considered relatively common. By Law, a prognosis must at least be “good.” That means that with a prognosis of “poor,” “guarded” or “fair,” a License Restoration Appeal MUST be denied. To put it another way, you cannot win a License Appeal with anything less than a “good” prognosis. Many of those who ultimately hire me have already tried a License Appeal before and lost. Part of what I need them to bring in, when we meet, is the paperwork from any prior Appeal(s). It’s not that I want to show off (okay, maybe I do a little bit…), but often enough, I’ll pick up their prior Evaluation first. Within a few seconds of beginning to read it, and without ever having looked at their Denial order, I can tell them why they lost. When I see an Evaluation, for example, with the “fair” box checked in the prognosis section, I can tell the person that such a prognosis figured prominently in the reason for their prior denial. This is always met with an agreeing shake of the head, and then a question about why their previous Evaluator or Lawyer didn’t know this.
The truth is that the Evaluator’s only job is to give an honest prognosis. Whether or not such a prognosis is good enough to win a License Appeal is another matter. The Lawyer (or person playing Lawyer) has to determine if that prognosis is legally favorable enough to win. In the case of a “do-it-yourself” License Appeal, I’m afraid that the cold hard answer is that the person got exactly the level of Legal help they paid for. In the case of someone who had a Lawyer who missed something like this, you can be certain that the Lawyer was merely someone who said he or she could “do” a License Appeal, and not a bona-fide Driver’s License Restoration Lawyer, like me.
Having a prognosis that’s not good enough is only half of the story. Beyond those now-defunct operations that gave everybody a great Evaluation and a glowing prognosis, the DAAD is always and correctly suspicious of a prognosis that’s just too good. There are only two choices of “good enough” prognoses: Good and Excellent. Excellent may, at first glance, seem better than good, but in truth, such a prognosis often brings more problems than it solves.
For example, a person with 23 years of continuous Sobriety, who attends AA twice per week, sponsors 3 or 4 other people, and who runs the twice annual “4th step retreat” is probably in line to get an “excellent” prognosis for continued abstinence.
By contrast, the person with just over 2 years clean time from their last drink, who no longer goes to AA may know, in the fiber of his or her soul, that he or she will never drink again is far more a candidate for a “good” prognosis for continued abstinence rather than “excellent.” In 10 years, when that same person has been living a Sober Lifestyle for over a dozen years, his or her prognosis may likely be excellent, but that’s not the case 2 years out…
Whether a prognosis is good or excellent, it must logically follow from the balance of the Evaluation. This means that a person with 5 DUI’s, a dilute urine screen, a lengthy relapse history and 13 months of abstinence will not only be a million miles from having an “excellent,” prognosis, but will likely not be seen as “good,” either. By the same token, the person we used in the example above, who had 23 years of Sobriety, would be expected to get an “excellent” prognosis. If not, then the Evaluator would have to explain the reasons why “good,” as opposed to “excellent” is the proper finding. You don’t have to think about it too much before you start wondering, “what’s wrong…?”
To complicate matters even more, all of these determinations are subjective. An Evaluator whose work experience as a Substance Abuse Counselor deals with more of a Criminal or DUI population is likely to see things differently than one whose career is in high-end, private rehab. My own experience in this regard is telling. The bulk of my day-to-day work revolves around License Restoration Appeals, but I also have a busy DUI Practice, as well. While it is true, for example, that all of my License Restoration Clients with 2 DUI’s have come to accept their drinking as a problem and have gotten Sober, it is also true that most of my 2nd Offense DUI Clients don’t believe they have a drinking problem. I cannot escape seeing my 2nd Offense DUI Clients in light of my work with my License Restoration Clients whose 2nd Offense marked the turning point in their lives and for whom it was the catalyst to becoming Sober. Thus, everyone in the License Appeal process, from the Evaluator to the Lawyer to the Hearing Officer is undeniably influenced by his or her life experiences.
Whatever else, the Evaluator must explain his or her given prognosis. The form itself provides a space for this explanation, but I’ve seen some Evaluations that either left this section blank, or skimped out on the details. This is hardly the place for the Evaluator to be “tight-lipped.”
Last, but certainly not least, is the Continuum of Care Recommendation. As a sort of conclusion to the Evaluation, the Evaluator is expected to advise the DAAD what, if any, additional AA, counseling or treatment a person should do to either get or stay Sober. In a case where the Evaluator feels a person doesn’t have the proper tools to remain Sober, he or she may recommend that the person do some more counseling, or go to AA for a while.
This is best explained a little bit out of order. I have to first point out that the Continuum of Care section never creates a problem for me, at least in Appeals that I handle where a person has never tried before. It can be a problem, though, when someone has previously lost a prior License Appeal, without me as his or her Lawyer. In these cases, I can wind up with a lot of repair work to do.
As we begin this final part of the discussion, I should point out that this serves as a first rate example of how a seemingly little thing can turn out to be a major thing, and be fatal to a License Appeal. Let’s clarify this with a few examples:
Assume that Sobriety Sam does go to AA once per week. He believes that weekly AA is essential to his recovery. A good Evaluator (like those that I use) will recommend, as a “Continuum of Care,” that Sam keep going to AA on a weekly basis. This is no big deal.
Assume, however, that Recovery Rhonda went to AA for a while because she was Court-ordered to do so, but then stopped as soon as she no longer had to go. In addition, she has been through outpatient counseling. Most of all, however, by the time she picked up her last DUI, she had no doubt her drinking was a problem. She was ready to quit, and, as the AA people say, she was “sick and tired of being sick and tired.” From the moment she bonded out of Jail, she never took another drink, immediately ditched her drinking friends and began rebuilding the relationships with the people that really mattered in her life, those she had to some degree neglected while the “party” was on. She soon enough established a “Sober Lifestyle.” While at AA, she kept hearing how important it was to always attend, but she just didn’t feel that going to meetings was doing her any good. Perhaps she didn’t identify with the people there, or she was put off by the religious component of the program; it could be any of a million good reasons, but the bottom line is that Rhonda has been able to maintain her Sobriety without AA. She simply does not need to go to meetings.
A truly good Evaluator will see that AA is not for Rhonda. As it turns out, AA is now considered one of several primary tools (including Cognitive Behavioral Therapy and Rational Emotive Behavioral Therapy) to help people get over a drinking problem. Twenty years ago (remember that…?), AA was seen as pretty much “it.” Accordingly, an Evaluator up to date with modern treatment protocols will recommend that Rhonda simply continue living a Sober Lifestyle. The Evaluator will note that Rhonda has the tools needed to maintain her Sobriety, and that no further AA meetings or counseling is necessary.
But it doesn’t always work out that way. In many cases, Ernie the Evaluator may be a guy who has 20 years of Sobriety under his own belt. Ernie learned how to get Sober at AA. If it worked for him, then he thinks it should work for everyone else, too. Alternatively, Elaine the Evaluator may not be in her own recovery, but may just be “old school.” In either case, these well-meaning people may, with all the best intentions in the world, suggest that Recovery Rhonda go back to AA to “strengthen” her understanding of recovery, or for “additional support.” This simple suggestion, however, creates a catastrophic problem for a License Appeal:
The Evaluator most likely just meant that it wouldn’t hurt if Rhonda checked into a meeting once in a while. If you asked the Evaluator, he or she would probably tell you that they didn’t mean Rhonda needed to go to meetings or else she’d start drinking again…
The DAAD, however, will read it just that way. Even if the prognosis on Rhonda’s Evaluation is “good,” once the Evaluator recommends AA, (not because it’s “needed,” but really because “it wouldn’t hurt,”) the DAAD will see Rhonda’s prognosis as “conditional.” The Hearing Officer will say that the Evaluator thinks Rhonda should go to AA, and she’s not going. Since the Hearing Officer doesn’t know what she’ll do in the next year, it is better to deny her Appeal right now and let her get back into AA. Once she gets the additional support the Evaluator thinks she should have, the Appeal can be better decided next year.
As I said, I don’t have this problem with the Evaluators I use. Even if I did, I’d make sure to get the Evaluation fixed, or re-done, because this kind of seemingly innocent Continuum of Care Recommendation will kill a License Appeal case. Because I can speak and understand the legal language and the Clinical language, I could easily fix this in most cases by speaking with the Evaluator and explaining the legal implications in terms he or she would comprehend.
Throughout the 3 installments of this article, it has been my goal to point out real-world, common errors on the Substance Abuse Evaluation that will cause a Driver’s License Restoration Appeal to be denied. I have tried to stay away from the underlying requirement that a person prove, by “clear and convincing evidence,” that his or her alcohol problem is “under control, and likely to remain under control.” Instead, I have tried to focus on the more clerical, or topical problems that will stop an Appeal dead in its tracks and prevent the Hearing Officer from ever needing to dig that deep.
If there is a lesson to be learned here, it’s that winning a License Appeal is very much about not getting tripped up by any of the “million little rules,” that control these cases, many of which are unwritten, or applied in a way that might be very different than a simple reading would suggest. In the first place you have to know the “rule” exists before you can observe it, and then you have to know what it means, or how it’s applied in the real world. I can certainly help with that. I don’t take just any License Appeal case, either; I only undertake representation for people who have really quit drinking. My integrity is not for sale. Nor do I “compete” with anyone else in terms of Fees, or quality of service. I have put up more relevant, useful information about License Restorations on my site and on this blog than can be found everywhere else combined a thousand times over. That’s how I do things. I back up every case I take by guaranteeing a win. No one can compete with that…
If you’re really Sober, and you’re ready to get back on the road and put a valid Driver’s License back into your wallet, call me. I’ll make it happen – and I Guarantee it.