Driver’s License Appeals – Problems with the Substance Abuse Evaluation – Part 1

Michigan Driver’s License Restoration Appeals are complex. They involve what I call a “million little rules.” Miss one of these simple requirements, and your case will be rejected right out of hand. The frustration here is that many License Appeals lose without any consideration being given to whether the person has really quit drinking, and has the commitment and tools to remain alcohol-free. That determination is really at the heart of a License Appeal. Within the various sections of my website and blog, I have made detailed examinations of those two critical issues from every conceivable angle. In this article, I want to take a step back from the “meat and potatoes” of a License Appeal and look at some of the other, more technical (one might say “clerical”) requirements, that, if not met, will still completely derail a License Restoration case. We’ll limit our focus in these three installments to the Substance Abuse Evaluation that must be filed with the State to being a License Appeal.

The Secretary of State’s Driver Assessment and Appeal Division (DAAD) operates under a very strict set of rules. I have written a whole numerous articles detailing how those rules work. One aspect that helps to explain why so many people who try a License Appeal on their own, or use some Lawyer who claims to “do” License Restorations and then loses, is the opening sentence of the ultra-important Rule 13:

“The hearing officer shall NOT order that a license be issued, unless the petitioner proves, by clear and convincing evidence, all of the following…(emphasis added).”

No Problem Alf 1.2.pngThis is a negative mandate. Specifically, it means that the Hearing Officers are instructed more to look for a reason to deny an Appeal, rather than a reason or reasons to grant it. The Hearing Officers are expected to review the paperwork in any case with a critical eye, and, make no mistake, they do just that.

A License Appeal begins by filing certain paperwork with the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD). Required amongst those documents is a Substance Abuse Evaluation(please note that a new form will be required by the DAAD as of April 1, 2013). This is usually the first thing read by a Hearing Officer, and is really the foundation of any License Appeal. Of course, the first thing the Evaluation must properly list is the name, address, date of birth and Driver’s License number of the person who submits it. All it takes in the busy world in which we live is for an Evaluator to be working on his or her computer, and then turn away for a moment, perhaps to take a phone call, and then overlook verifying a person’s Driver’s License number or correct address.

A real life example of the mess this can create occurs if a person, who now lives out of state, comes in for an Evaluation, bringing a driving record that lists their former Michigan address. One moment’s distraction can result in the evaluator using the address on the driving record (this is usually the right address, for most people, after all) to identify the person being evaluated. This, in turn, can create a problem at the Hearing, when the now out-of-state person requests a Clearance of the Michigan hold on his or her driving record rather than the Restoration of a Michigan License, and the Hearing Officer points out that the Evaluation provides a Michigan address, and questions the person’s true residency. While this doesn’t sound like a big deal, the inevitable next question from the Hearing Officer is something like “what else isn’t accurate or true in this Evaluation? Didn’t you read it?”

Another common but simple mistake that will cause an Appeal to be denied right out of the gate is not listing all of one’s DUI convictions. Sometimes, really old convictions don’t show up on the driving record a person gets from the Secretary of State. Other times, out-of-state convictions don’t show up, or at least not at first. In fact, sometimes, convictions show up years later. The workaround here is really simple: Tell the truth. List every DUI conviction you have. In cases where those convictions are really old, and/or out of state, disclose them with as much, or as little, specificity as you can. This is where I help. I have my own “Substance Abuse Evaluation Checklist” that I complete as I meet with my Client for about 3 hours BEFORE he or she ever has an Evaluation completed. I do this to make sure there are no problems with the Evaluation, and that nothing is left out or not properly explained or presented to the Evaluator. My Client gives this Checklist to the Evaluator. This way, I have no worries. I can rest assured that I’ve clarified, disclosed or explained everything.

Failing to list every single DUI conviction, only to have one (or more) that was not disclosed show up later will stop any License Appeal dead in its tracks. Beyond issues of honesty, the Hearing Officer can only guess at what kind of difference, if any, having known the full extent of the person’s DUI history would have impacted their assessment by the Evaluator. If the Hearing Officer is left wondering about anything, or has unanswered questions about something, it means, then, that the person has failed to submit proofs that are “clear and convincing.”

Think about that for a moment: “Clear and convincing” is the standard of proof one must make to win a License Appeal. Defining that is beyond the scope of this article, but we can steer around having to do so by noting that, if the person deciding the case has any unanswered questions, or wonders about the meaning of something, whatever else, the evidence presented to them was not clear and convincing. At a minimum, clear and convincing means not having unanswered questions.

Another common (and completely avoidable) problem arises when a person doesn’t disclose any other, non-driving convictions (there is a separate section for this on the form) they have. If the charge involved any use of drugs or alcohol, then the DAAD wants the Evaluator to know about it. After all, if a person’s last DUI was in 2007 but he or she was convicted of a Domestic Violence or Disorderly Person charge in 2010, and they had been drinking, it means the negative consequences of their drinking were still relevant in their life up to that point, at least. Even if alcohol wasn’t involved, having an undisclosed conviction turn up is always bad news, because it calls into question your honesty.

Next, we come to listing your BAC results from your DUI cases. Even inadvertently providing BAC results that are inaccurate creates a huge mess that can often send a License Appeal crashing. The Substance Abuse Evaluation form has a specific box that asks for a person’s BAC test result for each of his or her DUI cases. From the Hearing Officer’s point of view, if an Evaluator doesn’t know ALL of the correct details of a person’s past alcohol and substance use history, including the person’s DUI and Criminal history, then there is no way to really tell whether what was left out, or otherwise provided incorrectly, would have made any difference to any of the conclusions reached by that Evaluator within the Evaluation itself. Remember, an unanswered question is bad news.

A common example of this kind of error occurs with trying to remember your own BAC results. Assume Dan the Driver lists 2 DUI’s, and tells the Evaluator that at his first, in 2006, his BAC was .10, and that at his second, in 2010, his BAC was .14. Although Dan isn’t sure of his actual BAC results, he has no reason to lie, simply reports what he remembers. Later, during his Hearing, the Hearing Officer points out that his BAC scores were actually .14 and .19, respectively. In denying Dan’s Appeal, the Hearing Officer notes that because he is unsure of what difference, if any, having the correct BAC scores would have made to the Evaluator, and ultimately, the Evaluator’s conclusions, Dan is found to have not met his burden of proving his case by “clear and convincing evidence.”

It doesn’t have to be this way. While Dan shoulders some of the responsibility for providing the wrong information, the Evaluator has no real way to double-check Dan’s information. The Evaluator cannot be both an Evaluator and a Lawyer. This is where my Substance Abuse Evaluation Checklist comes in handy, and why I think it’s so important as a safety precaution; it provides an assurance that everything is listed (or not), as it should be. In the case of Dan the Driver and his BAC scores, I’ll make sure that he doesn’t misread his driving record (a more common mistake than you can imagine) and that he does not, under any circumstance, wind up providing incorrect information to the Evaluator, even if that means he doesn’t provide any BAC scores.

Failing to list all the classes or counseling a person has undergone is another frequent and costly omission, particularly when these were done years and years ago. Looking at the relevant section of the Substance Abuse Evaluation, one cannot help but be intimidated by the degree and specificity of the information requested. It almost looks like the DAAD wants a person to attach or summarize their treatment records. Worse yet, it seems the DAAD will “punish” a person for providing wrong BAC results, so the prospect of leaving something out is frightening. Yet here, things change. As it turns out, most of my Clients cannot give specific dates for their classes, counseling, impact panels or treatment, and sometimes can only guess at the exact kind of program they attended, and when. The biggest mistake is to simply omit something because you don’t have exact details. This is another point where I make sure my Client understands how to present this information, even if they can come up with nothing more specific than listing an “alcohol education class in approximately 1997,” or something like that.

The risk of omission here is huge. It is ALWAYS the case that anyone who develops a drinking problem needs multiple exposures to “the message” before any of it ever sinks in. In other words, it takes numerous attempts to get a person who ultimately develops a drinking problem to take a step back and really analyze his or her relationship to alcohol. There’s probably NEVER been anyone who, after a first DUI, attends some type of Victim Impact Panel, comes out and declares, “Wow, I suddenly get it! I now recognize that I have a drinking problem; I’m going to quit!” Instead, it usually takes repeated exposures to get a person to “see the light.”

Thus, failing to list any kind of class, counseling session or program that you’ve ever done, relative to your drinking, is a big mistake.

AA attendance has to be accurately listed, as well. To be clear, most of my Clients have done some AA, but no longer go. By contrast, some of my Clients are still active in AA (and that’s always helpful), while others have never gone. About the last thing a person should do is come across as having really been into AA if they weren’t. There are few things more awkward than being asked about what you got out of regular AA attendance when the real answer is “nothing.” Most people go for a while, learn what they need to, and move on. That’s fine, but don’t try and pretend that AA was a huge part of your life, especially because it’s NOT necessary in order to win a case that’s otherwise properly prepared.

There is really a lot to this part of the Evaluation. When I meet with a Client for the first time (and, as I noted, that meeting lasts about 3 hours), it is at this point, as we’re going over the Substance Abuse Evaluation and my Substance Abuse Evaluation Checklist, that I say “we’re going to go off the Reservation for a while here.” As much as accurately “listing” AA attendance (or the lack thereof) is important, it is what I call the “take away” from that attendance, and from your time in counseling or education or rehab that is so critically important. We’re going to really dissect what you learned, and what tools you developed to make sure you don’t ever drink again. For the purposes of this article, we can leave it that any AA attendance must neither be overlooked nor exaggerated.

Having covered the personal information and a person’s attendance at various kinds of educational, rehabilitative or support groups, we’ll end this first installment. In Part 2, we’ll continue our examination of the things that can go wrong with a Substance Abuse Evaluation by picking up at the point where the Evaluator administers the written alcohol assessment test.

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