Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began our overview of the importance of the Substance Abuse Evaluation in a License Restoration Appeal. In this 2nd part, we’ll continue that overview by examining how a Substance Abuse Evaluation in a License Appeal must meet 2 threshold requirements: First, that is “legally adequate,” and second, that it is “favorable.”
I noted that part of my motivation in writing this article was the frustration I feel when I see a Substance Abuse Evaluation that hasn’t been done properly. This really means that a Substance Abuse Evaluation fails to meet either of the 2 requirements it must meet in order to be deemed “good.”
First, and foremost, a Substance Abuse Evaluation must be “legally adequate” in the eyes of the Secretary of State. Take a look at the Form. Every one of those lines and boxes require very specific information. The only requirement for the person completing that form is that they be Professionally Licensed to administer and score an alcohol assessment, and make a DSM-IV diagnosis. In other words, being a Licensed Substance Abuse Counselor is all that’s needed to sign off on this form.
Notice that the form does NOT request tons of information. Instead, it requests very specific information. Yet, of the many cases which come to me after having tried and lost on their own, or with a Lawyer who claimed to “do” License Restorations, a fair number of them feel that more information is better. I’ve literally seen 3 and 4 extra pages of information attached to a losing Evaluation. In most of them, beyond including lots of useless details, the exact, specific information requested by the form was left out!
A legally adequate Substance Abuse Evaluation provides exactly the requested information sought on the form. Anything more is a waste of ink and space. In order to know what the Secretary of State really wants, a Counselor must prepare these Evaluations on a regular, on-going basis, and then get feedback from the subject of the evaluation regarding a win, or loss. In other words, without seeing how those evaluations are “evaluated” by the Secretary of State, the person doing them really can have no idea of whether they’re getting it right, or wrong. Even if they manage to get it right, that should be the product of knowing what’s being sought, rather than sheer luck.
Thus, “legally adequate” means providing the exact, specific information the Secretary of State wants, in the right place, on the Substance Abuse Evaluation Form. If a Substance Abuse Evaluation is not “legally adequate” because it is deficient in some regard, then the Appeal is lost. Nothing can save it. Game over, in other words.
However, submitting a “legally adequate” Substance Abuse Evaluation does not win, nor come close to winning, a License Appeal. It just means you haven’t struck out.
Beyond being “legally adequate,” a Substance Abuse Evaluation must be “favorable.” This must mean it supports the proposition that the person’s “alcohol problem is likely to remain under control.” This proposition is really the heart and soul of a License Appeal, and is outlined as a requirement in Rule 13, which is the Rule of Law governing License Appeals.
Perhaps in a future series of articles we’ll analyze the whole, broad concept of what goes into making a Substance Abuse Evaluation “favorable,” but the bottom line is that a person’s Lawyer should be able, within a matter of minutes, to determine whether that is, or is not the case.
When the Substance Abuse Evaluation is both “legally adequate” and “favorable,” then it, along with the Request for Hearing, can be filed.
If the Substance Abuse Evaluation is “legally adequate,” but not “favorable,” then submitting it is guarantee that the Appeal will be lost. Just like an Evaluation that is not “legally adequate,” filing one which is not “favorable” will absolutely result in a lost Appeal. There is no overcoming this deficiency, either.
So what does a person do if they’re Evaluation is “legally adequate,” but not “favorable?” Depending on the problem, it may be possible to have the evaluator correct, or otherwise revise it to bring it in line.
If however, the evaluator cannot do that (because they don’t feel, for example, that the person’s Prognosis is good enough), or will not do that, then the whole thing must be scrapped. That’s what I meant earlier when I observed that if an Evaluation does not meet my standards, the money spent on it goes up in smoke. Having that critical analysis done by your Lawyer BEFORE you turn in a document which guarantees you’ll lose is a big part of what you’re paying for.
The only alternative is to submit it, and just wait to hear you lost. Better to trash the thing and try again, somewhere else, than to file a sure loser.
Yet in many of the cases I see, when I’m hired after an initial loss involving someone who filed on their own or with another Lawyer, I discover a screwed-up evaluation to be the cause for the loss.
Given that preparing for the Substance Abuse Evaluation is only the first step of many in a License Appeal, it is not only a waste of the Client’s money to submit a flawed Evaluation, it would likewise be a waste of both my time and theirs to do anything after a fatally flawed Evaluation has been submitted. In other words, all the time and energy that can go into preparing for a Hearing is a complete waste, because the Hearing has already been lost, even before it began. No amount of effort can save an Appeal if the Evaluation submitted was not both “legally adequate” and “favorable.”
As of this writing, in early November of 2010, I have filed and won every one (100%) of the more than 60 License Appeals I’ve handled so far. It’s this attention to detail that has all those Clients back on the road. While there is a certain expertise and knowledge necessary to do these Appeals, it’s equally, if not more about that microscopic examination of every aspect of the case BEFORE it’s filed, than anything else, that accounts for that success. Knowing why you lost after the fact is cold comfort, and can only be of value in next year’s Appeal. Knowing why you’d lose BEFORE the fact results in correcting things so that you spend your time driving, and not worry about getting it right next time.
This article can only scratch the surface of the importance of the Substance Abuse Evaluation. If it merely convinces the reader of that importance, then it has succeeded. Again, there’s so much to this that it takes about 3 hours across the desk for me and a Client to prepare just for this first step in the License Appeal process. Whatever else, the reader should at least now know that you can’t merely go and “get a Substance Abuse Evaluation” and then send it in. If you weren’t properly prepared for the process, then getting a good one is more a matter of luck, than anything else. And given the stake in a License Appeal, nothing should be left to luck.