Michigan Criminal Defense Lawyer Blog
In my numerous articles about Driver’s License Restoration, I have examined the process of getting back on the road in fine detail. In many of those articles, I have talked about the role of the Substance Abuse Evaluation and how important it is. In this article, we’ll take another look at this first, and utterly critical step in a License Appeal. This is a deep subject. Still, even a somewhat superficial overview will be informative. To do such an overview justice, we’ll break the article into 2 parts.
Part of my motivation to write this article is the fact that the Michigan Secretary of State’s Driver Appeal and Assessment Division (DAAD), which overseas all aspect of License Appeals, has recently revised the Substance Abuse Evaluation Form. The other part of my motivation is a sense of frustration at the fact that so many Counselors and Therapists who have the academic and professional credentials to fill out and sign this form DO NOT have sufficient experience to know specifically what information the Secretary of State needs and wants, and what information, while perhaps interesting, does nothing to help a case.
Part of the problem I’ve seen with Evaluations that I’ve not a hand in obtaining is the omission of specific, required information. This is sometimes compounded by the inclusion of lots of other, irrelevant information. We’ll discuss this a bit more as we talk about the 2 threshold requirements for a Substance Abuse Evaluation in a License Appeal; that it be “legally adequate,” and that it be “favorable.”
In response to simply not getting the information it needs to decide a License Appeal, the Secretary of State has recently revised the Substance Abuse Evaluation Form. Instead of just leaving blank lines under the Prognosis section, the new Form actually has check boxes so that it gets an actual Prognosis, rather than a discussion about one not actually written. It is noteworthy that the new Form has a check box for a “Guarded” Prognosis, and omits one for “Very Good.”
The same thing has happened to the section for Diagnosis. Rather than hope an evaluator will give a DSM-IV diagnosis, the Secretary of State has created check boxes for all those that are relevant to an alcohol problem.
The reason for this whole revision is that too many people who have the Professional credentials to complete an Evaluation try their hand at it, even though they don’t have the requisite experience. My Law License does not prohibit me from taking on a complicated Medical Malpractice case. My lack of training and experience in that field means I should not.
Even with these changes, the fact remains unchanged that there are relatively few Counselors who have a thorough understanding of the License Restoration process. For that matter, there aren’t a lot of Lawyers who have that understanding, either.
In recent years, I have minimized the effect of this problem by referring my Clients to a specific, very experienced, very highly-regarded Clinic that does an ace job of completing the Substance Abuse Evaluation. Interestingly, this Clinic charges anywhere from $100 to $200 LESS than most other places, including those that routinely turn out a sub-par product.
In those cases where the Client has a good, or long-standing relationship with another clinic, or for whatever reason would prefer to go somewhere else to have their Evaluation completed, I only warn that if the completed product, after my review, isn’t up to my standards (in other words, if I think it’s a loser…), then we’ll have to trash it, and the $300 or $400 they spent on it goes up in smoke. If they use the Clinic which I prefer, while there’s no guarantee that the Evaluation itself will be favorable for them, there is essentially zero risk that it won’t be legally adequate and done right.
Sometimes, the Substance Abuse Evaluation is referred to by the broader term Request for Hearing and Substance Abuse Evaluation. That’s because the Substance Abuse Evaluation is really part of that overall set of documents which need to be submitted in order to begin the License Restoration Process.
To say that this document is important is like saying water is wet. That’s the understatement of the century. In fact, the Substance Abuse Evaluation is the single most important facet of a License Appeal. It is the very foundation upon which all the other evidence and testimony must stand. As we begin to examine it’s role as the foundation of a License Appeal, let’s clarify something:
A Substance Abuse Evaluation, no matter how legally adequate, favorable, and good, cannot, on its own, win a License Appeal. However, it will, if it falls short in any critical respect, absolutely cause a person to lose a License Appeal.
The Substance Abuse Evaluation Form is an Official State of Michigan document that a person must take to a Licensed Substance Abuse Counselor to have filled out. Having a Substance Abuse Evaluation completed involves being interviewed by the Substance Abuse Counselor, and it also involves taking a written alcohol assessment test. How well or poorly a person does on that test has a huge impact on both the person’s Diagnosis (meaning are they determined to be or have been an alcohol abuser, or someone who is/was alcohol-dependent…) and their all-important Prognosis.
The result of that interview, and the scoring of the test or tests a person was given is reflected in the completed Substance Abuse Evaluation Form the Counselor will produce. This, along with the Request for Hearing, is filed with the Secretary of State in Lansing. In my Office, all Hearings, no matter where a person lives (including out-of-state), are set for the DAAD’s Livonia Office. For those who’ve done this before, but not for a few years, that’s the office that used to be in Southfield.
Thus, it is critically important to be prepared for the actual written test you’ll be facing. Getting a “better” score where possible on any alcohol assessment is always preferable to being seen as having a more serious alcohol problem than could otherwise have been made out.
Beyond just doing as well as possible on the alcohol assessment test, and separately doing as well as possible in the Q and A (interview) with the Counselor, these two components must come together to form a complete and consistent picture of the person being evaluated. In other words, preparing the Client means making sure they see how both the alcohol assessment test and the interview with the Counselor all fit together. It’s a big deal, and it’s a big job.
But the costs of not doing it right are huge. Losing a License Appeal basically means that a person has to wait a full year to Appeal again. And beyond just doing it better next time, they have to address and fix whatever errors caused them to lose the first time.
To make the point even clearer, this first step is so important that in my Office, when I’m first hired by a new Client, I’ll spend about 3 hours with them at the very first appointment just preparing them to have their Substance Abuse Evaluation completed. In other words, before they ever set foot in any Clinic, mine or theirs, I’m going to go over the Substance Abuse Evaluation Form line-by-line with them, so that they can avoid every possible problem and maximize every possible benefit that exists in the Substance Abuse Evaluation Process.
In practice, it’s avoiding problems that’s most important. As I’ve pointed out in numerous of my Driver’s License Restoration articles, a good chunk of my License Restoration caseload involves representing people who have either tried it before, on their own, without a Lawyer, and lost, or those who’ve just hired some Lawyer who claims to “do” License Appeals, and lost. In the vast majority of those cases, the things that were missed, meaning problems that could have been avoided, are painfully obvious to the trained eye.
Just to make sure that nothing gets “missed,” my Assistant, Ann (who probably knows more about License Restorations than most Lawyers…) reviews all Substance Abuse Evaluations (and Letters of Support) independently. We compare notes. An inconsistent date, an inconsistent Diagnosis and Prognosis, or an errant, or otherwise not-properly explained BAC result can be the reason an Appeal is denied. When you hire a License Restoration Lawyer to handle your case, you better be secure in the knowledge that, whatever else, that kind of error doesn’t cost you another year without a License. To me, another set of eyes is priceless. To my Client, it comes without additional cost.
In Part 2 of this article, we’ll pick up with an examination of the two threshold requirements of a Substance Abuse Evaluation in a License Appeal; that it be “legally adequate,” and that it be “favorable.”