Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began looking at how an important part of any License Appeal is the specific Hearing Officer to whom the case has been assigned. We talked about 3 of the 5 Hearing Officers before whom I appear in the Metro-Detroit Branch of the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD) in Livonia. In the interests of diplomacy, I have refrained from using their actual names, but have instead referred to them by the nickname that I think encapsulates their most prominent characteristic(s).
We’ll pick up by looking at the 2 Hearing Officers generally considered the “toughest” of the group. I use the term “toughest” rather liberally here. In my experience, while these Hearing Officers are no doubt firm, they are also unquestionably fair in application of the Law to any case before them. Sometimes, especially if a person does not understand the subtleties of the law, and especially if they really and truly have been Sober for a while, they feel slighted for being Denied, without fully understanding that any such Denial isn’t a decision that they’re not Sober, but rather a decision that they have failed to prove that their alcohol problem is under control, and that their alcohol problem is likely to remain under control, by the required “clear and convincing evidence” standard.
With that, let’s turn out attention to the two remaining Hearing Officers:
4. The Doctor.
Perhaps the “hardest” (okay, “toughest”) of all Hearing Officers, this individual tends to approach the entire process more from that side of the governing Rule (Rule13) which directs that “The Hearing Officer shall NOT order that a License be issued, unless the Petitioner, by clear and convincing evidence, proves the following…” (emphasis added). In other words, this Hearing Officer has the highest standard for what he considers to be “clear and convincing evidence.” He has the nose of a tracking dog for any use of drugs, meaning past drug use, or current prescription drug use, as well as cases involving any kind of anxiety, depression, or other mental health or mood issues. If any of those issues are present, or were ever present, then preparing for a Hearing before him will typically involve getting a letter from one’s treatment provider addressing his specific concerns, including that the prescribing physician or treatment provider knows about the person’s alcohol and or drug problem(s). Likewise, he tends to make a microscopic examination of any issues involving anxiety or mood disorders, or any kind of bi-polar issues. Whatever else, he is not content to accept the Substance Abuse Evaluator’s conclusion that such an issue “isn’t a problem.”
5. The Judge. This Hearing Officer, while often perceived as “tough,” is actually not only consistently fair, but has intellectual, judicial and legal skills far too rare amongst our various state Judges. In other words, he’d make a great Judge in any Court, but their gain would be a loss to Lawyers like me who relish the consistent and fair, albeit thorough application of the Law to the License Appeals I file. Known to be a bit “abrasive,” at times, during the Appeal Hearing, it is part of what I see to be larger attempt to knock someone off his or her game, even in mid-sentence. The upshot is that if a person who is really and truly Sober gets turned around, they can easily find their way back, because the story they’re relating, meaning their story, is true. On the other hand, if someone thinks they can come in, claim they go to AA when they actually don’t, and simply spend a little time memorizing the 12 steps, then they’ll find themselves sufficiently confused and discombobulated, and ultimately exposed. Accordingly, if the Client is the “real deal” as far as Recovery and Sobriety are concerned, and is otherwise properly prepared to face this Hearing Officer, then what will occur at the Hearing is that they will reveal themselves to actually meet the State’s criteria of being able to prove, by clear and convincing evidence, that their alcohol problem is under control, and that their alcohol problem is likely to remain under control. For those that attend AA, he tends to favor a more mechanical explanation of the program. Those who don’t go to AA, or who have never gone to AA can expect to be required to detail a pretty comprehensive understanding of their drinking problem, and where it fits in on the continuum of alcoholism.
Of course, boiling down these complex, interactive and intelligent personalities into a paragraph or so is a gross oversimplification, but this is, after all, a blog article, and not a biography. And despite the fact that the synopses I have outlined above are, by definition, oversimplifications, they are also, I think, accurate and helpful characterizations. Accurate because they highlight what are the most prominent characteristics of each Hearing Officer, and helpful because failing to take into account those characteristics as one prepares for a Hearing means the person should be preparing for a loss instead of a win.
Once the Client and I receive Notice of the Hearing date, and the Hearing Officer to which their Appeal has been assigned, we do much more than just observe, “This Hearing Officer is like a Doctor.” What good, after all, is that? Instead, I will help the Client understand how the unique interests of their particular Hearing Officer will play out in their Appeal. For example, the Hearing Officer I have identified as “the Judge” will have a very specific set of questions for someone who appears before him and claims to go to AA for support. Absolutely none of those questions are relevant if the person does not go to AA, and instead maintains (or even began) their Sobriety some other way, such as after an Outpatient program or after attending Counseling for a while.
Similarly, the “Spiritual Lady,” as I call her, will have a certain set of questions for someone who claims AA as the source of their continued Recovery and Sobriety, and an entirely different set of questions for someone who does not rely on current AA attendance to maintain that Sobriety.
Ditto across the board, more or less.
In a fair number of cases that go through my Office, the Client is, at some point, diagnosed with either an anxiety disorder, or bi-polar disorder. Each of these is a fairly common problem. So common, in fact, that 4 out of the 5 Hearing Officers in Livonia will generally accept the Evaluator’s (the Clinician who performs the required Substance Abuse Evaluation) analysis of the condition, and how it relates to the person’s alcohol problem diagnosis, as long as the analysis contained therein seems thorough enough, and supported by factual observations.
However, the Hearing Officer previously described as “The Doctor” will absolutely require more. As of the writing of this article, I have a case coming up before him, in a few weeks, involving a Client with a pretty substantial bi-polar diagnosis. Even though the Substance Abuse Evaluation itself addresses this issue, and does so in a way that would likely be acceptable to the other 4 Hearing Officers, knowing that this case has been assigned to “The Doctor,” I have a meeting scheduled with my Client, and will advise him to get a letter from his treating Psychiatrist covering a few subjects that I know will be relevant to our Hearing Officer’s concerns, including that his doctor is aware of his alcohol problem, that his medication is neither addictive, nor mind or mood-altering. I will present this letter to the Hearing Officer on the day of the Hearing, because I know that going in there with nothing more than just the Evaluator’s analysis would seriously jeopardize our chances of winning the first time. As it stands now, I have won 187 out of the last 189 Hearings I have held since I began keeping “score” back in about June of 2009, giving me a first-time win rate of 98.94%, backed up with a guarantee that once the Client hires me (assuming I accept their case), I will win back their License at the Secretary of State without additional legal Fees.
Anyway, the upshot of this is that I would not have that win rate if I were not keenly aware of these factors.
Another “thorny” problem arises when a person has any significant prior drug use history. While many people in Recovery (rather correctly, in my opinion) think of Sobriety as Sobriety, meaning that being truly Sober means abstaining from all addictive and mind or mood-altering substances, the State will often consider anything more than the mere experimentation with an other substances as requiring a separate diagnosis for that other substance, called a “poly-substance” diagnosis. And this applies equally when those other substances are prescription medications, including those that were legitimately prescribed.
I have seen cases where the “poly-substance” diagnosis has been something like “alcohol dependence in sustained full remission,” and “cannabis abuse, in sustained full remission.”
This issue is typically addressed more intensely when a person’s case has been assigned to “The Doctor,” or “The Judge.” Other Hearing Officers, at least in many cases, tend to be more reliant on the Evaluator’s conclusions, whereas the other two Hearing Officers just singled out require more.
Which brings me to another point that comes up often. As I explain this to someone, or as I explain to someone why their whole case should have been prepared and presented differently in a prior License Appeal that lost, bringing them to my Office, it is not unusual for the Client to express some frustration with the process, or what they perceive to be a lack of uniformity within the License Appeal process. Sometimes, this boils over into them saying something along the lines of “this is bull$h**!” And while I understand those feelings, my simply agreeing and commiserating with my Client and having a “pity party” will get us nowhere.
Instead, I have to point out that my job is to know these things, and to win. Even if the way the DAAD sometimes decides things is, in fact, “bull$h**,” is there any reader out there who would like to finance an expensive, years-long Supreme Court Appeal to change the process for everyone whose case comes after theirs, and really wants to “teach the state a lesson,” or would you rather just go in an win the first time? Or, if you’ve already tried on your own and lost, or hired some Lawyer who claimed to “do” License Appeals, at least win then next time, when I go with you? This reminds me of the old saying “let’s not reinvent the wheel.”
This is an important point. I may not agree with everything the DAAD does, nor every decision it reaches, but I offer my services to avoid being on the losing side of those decisions. I have noticed, over the years, that the DAAD Offices in Lansing and Grand Rapids seem to crank out a lot of Denials. Easy for me to say, as I have never been Denied there, because, in truth, I have never gone there. Still, I know the Hearing Officers in Livonia, and I know what they’ll be looking for, and to go ahead with a License Appeal without knowing the idiosyncrasies of the person deciding it is, in my opinion, “flying blind.” In that regard, if someone offered me a million dollars to go to Lansing or Grand Rapids, they’d be paying for my tuition, and not my experience.
That said, there still are some generalities that override which Hearing Officer will be deciding an Appeal. No matter to whom the case has been assigned, if a person does not meet certain criteria, like having been Sober for at least a year, they can pretty much count on losing. Any reader who has dug around a bit might recall having seen that the DAAD Rules require a minimum of 6 months abstinence, except in certain cases, where a 1 year minimum is required. Generally speaking, you can forget that 6-month stuff. I, for one, would NEVER take an Appeal for anyone who had less than a solid year of abstinence. This is because I don’t think any Hearing Officer, regardless of where they are stationed, will grant an Appeal when someone comes in with less than a year of Sobriety, and a chunk of that being a period of demonstrable, voluntary Sobriety.
Similarly, even though there is no “rule” regarding a spouse or partner or roommate using alcohol or not, I don’t know of any Hearing Officer who wouldn’t see red flags all over the place if a person indicates that there is alcohol kept in the home, even though it is supposedly for the exclusive use of that other person.
As the date of the License Hearing approaches, I try to put my Client’s at ease by pointing out that, as we begin the process of actually preparing for it, we will likely spend twice as long preparing for the Hearing as we will actually spend in it.
This goes to another point I have made again and again; there are no shortcuts to winning a License Appeal. If I could cut my prep time in half, and still be as thorough as I am, I certainly could find things to do with the extra time. But I have developed a winning system that requires time and thought and work. License Appeals are won in the preparation. And nothing beats thorough preparation.