Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began our examination of the Diagnosis section of the Substance Abuse Evaluation that is a required part of the Driver’s License Appeal process. In this second part, we’ll continue that examination by first narrowing our focus a bit and zooming in on what are often called “self-validating” or “test-taking attitude” scores, and then looking at the more general role of the Diagnosis section of the Substance Abuse Evaluation in a License Appeal.
As I noted in the part 1 and part 2 of the previous article regarding Testing Instruments, the most commonly used test for License Appeal Substance Abuse Evaluations is the SASSI-3 (or simply SASSI) Test. Unlike the MAST Test, the SASSI calls for no discretion in the scoring of the Test. However, as we noted in our discussion of the SASSI in that previous set of articles, the SASSI has a number of “self-validating” questions that ultimately result in a “Defensiveness” score. Depending on that score, the overall test results are determined to be more, or less, reliable. The higher the Defensiveness score, the less reliable the SASSI Test results. Of course, the lower that score, the more reliable any such results are determined to be.
If this was as easy as consistently dealing with low Defensiveness scores, then there would be no need for this discussion. However, a sizable chunk of people wind up with Defensiveness scores that, while not high enough to completely invalidate the Test scores, do call them into question. This leaves the test results in need of “interpretation.” This means that the Evaluator has to arrive at a Diagnosis based upon not only the Test scores, but his or her experience, disposition and training as a Substance Abuse Counselor. It means, in short, that the Diagnosis is not completely determined by objective standards, but also contains an inescapable element of analytical subjectivity.
Beyond being able to analyze any such Diagnosis independently, it is even more important to know how the DAAD will “see” it. No matter how favorable any such Diagnosis might first appear, if it can, or will be doubted by the DAAD Hearing Officers, or otherwise not automatically accepted by them as inherently reliable, then the result will be a Denial of a License Appeal.
Remember, DAAD Rule 13, which governs License Appeals, mandates that the Hearing Officer “shall not” issue any driving privileges unless the person Appealing proves his or her case by “clear and convincing evidence.” This means that if the Hearing Officer has any unresolved question or questions about the evidence presented in support of the Appeal, the person will lose. Therefore, a questionable diagnosis will in turn lead to the Hearing Officer declaring the Substance Abuse Evaluation to be “questionable” or “insufficient,” and the whole Appeal goes down the drain.
Beyond any potential problems with the actual Diagnosis reached, the DAAD looks for consistency between that Diagnosis and the persons “recovery story” and their sobriety.
In another recent article, I pointed out that the majority of people for whom I win a License Appeal are NOT actively involved in AA. I also pointed out that of that group, while a majority have had some AA exposure, a significant percentage have never set foot in an AA meeting in their life.
Even thought there are no hard and fast rules requiring AA involvement, it is far easier to accept that a person with 2 DUI’s has learned to get and maintain sobriety without AA than someone who has 13 prior DUI’s ( most people raise their eyebrows or gasp at this point; I once had a Client with 13 prior DUI’s who did 1 year in AA and won his License Appeal the very first time we filed it). The point here is that being diagnosed as chronically, seriously alcohol-dependent is going to mean a person’s path to sobriety is quite different from that of someone merely diagnosed as an alcohol abuser.
To complicate things even further, there is often a need for a “poly-substance” Diagnosis, or at least the need to explain why there is no such Diagnosis. This requires an unusual degree of experience and skill on the part of the Evaluator. The Substance Abuse Evaluation form itself does not specifically have a place for such a diagnosis, or lack thereof. That, however, does not stop the DAAD from looking for one where they think it warranted.
“Poly-substance” refers to the use of more than one kind of intoxicant. Thus, a person who has a history of abusing alcohol and prescription medications would present such a situation. This tends to be inconsistent with the idea that sobriety is sobriety is sobriety, and that addiction is addiction is addiction. In other words, anyone with any real recovery knows that if their drug of choice was limited to alcohol, and thereafter they start taking Xanax, it is only a matter of time before they begin abusing that. This is why addicts in recovery are advised to avoid all addictive, mind or mood-altering and narcotic drugs, and are told to inform any treating physician of their Substance Abuse problem to avoid a relapse.
People who are truly sober understand sobriety to mean “sober.” A person who was an alcohol abuser cannot simply quit drinking, yet smoke weed instead. They are not truly “sober.” Sober people understand this. Anyone struggling with a Substance Abuse problem and to whom this is not yet crystal clear has simply not fully “gotten it.” In general, that’s okay, because Recovery is, after all, a process. Within the framework of a License Appeal, however, it is a sign of a guaranteed loss.
The DAAD will absolutely require a person who used to drink and smoke weed to come forward with a “poly-substance” Diagnosis. In other words, the person may have been alcohol dependant, and a marijuana abuser, or the other way around, or perhaps merely an abuser of both. The specifics don’t really matter. The main point, however, is that the DAAD will not merely accept that a person is “sober” without a separate Diagnosis for each substance they used.
It gets even more complicated. Many, if not most people, have used marijuana at some point in their lives. Merely having used marijuana, however, does not mean a person has ever had a problem with it. There is no set point at which the DAAD decides any such prior use went beyond mere experimentation and became an “issue.” And if the DAAD has no set point by which to make this determination, then how can anyone expect an Evaluator to be any different?
This leaves it to the Lawyer to make the initial inquiry of the Client as part of the preparation for the Substance Abuse Evaluation, and then guide the Client accordingly. In my Office, I’ll ask specific questions about a person’s experimentation and use of other substances or drugs, as well as any prescriptions they had or have, and then guide them accordingly. Once the Evaluation has been completed, I need to make sure that poly-substance issue has been completely and properly addressed by the Evaluator. I cannot assume that my Client, who has just spent nearly 3 hours with me, will remember everything, nor can I assume the Evaluator will completely address it.
Sometimes, in doing a Substance Abuse Evaluation, the Evaluator concludes that there is no poly-substance abuse diagnosis. That’s great, but it needs to be stated and/or clarified in the Evaluation. If the Hearing Officer wonders if there was or was not such a problem, and it is not completely addressed within the Evaluation, then the Hearing Office cannot, and will not conclude, merely upon the fact that it is not addressed within the Evaluation, that it is or was not an issue. Instead, the Hearing Officer will note that they have this unresolved question that is NOT answered by the Evaluation, and in turn, will Deny the Appeal. Remember Rule 13.
As we have seen, the actual Diagnosis produced by whichever Alcohol Assessment Test a person takes must be correct. In many cases, “correct” (or not) is a matter of some degree of interpretation. In those cases, it is most important for the Lawyer putting the License Appeal together to know how the DAAD will interpret any such Test results, rather than simply relying upon the potentially different interpretation of different Evaluators. Even if the Diagnosis is beyond dispute, the kind of Classes, Counseling and Treatment a person undergoes must be, for lack of a better term, consistent with that Diagnosis. After all, you don’t diagnose someone with lung cancer and prescribe an anti-biotic as the cure. In addition to those factors, a poly-substance diagnosis (or a specific lack of one) is required in some cases.
A correct and accurate Diagnosis is essential to properly treat, or approve of the past treatment for any condition or disease. A person cannot be approved for a License if the DAAD finds that their Diagnosis in inaccurate, or if their treatment (meaning path to recovery) is inconsistent with that Diagnosis. In that regard, it is extremely important to know how the DAAD will view things, because it will be their Hearing Officers deciding the License Appeal, and not the Evaluator who arrived at any particular Diagnosis. This means the Lawyer handling the Appeal needs a firm understanding of how the DAAD views things. This also means that any such problems within the Substance Abuse Evaluation must be corrected. If those problems cannot be corrected, then the Lawyer may have no choice but to ditch that Evaluation and help the Client get one that will work. This can only occur if the Lawyer handling the License Appeal has a fundamental and thorough understanding of alcoholism, addiction, cross-addiction and recovery, and has significant experience with those specific Hearing Officers that will be deciding any particular License Appeal.
Alcoholism is a disease, and Diagnosing any such problem is quite similar to “staging” any other disease. For example, a person might undergo a test and be diagnosed as having “pre-cancerous” (meaning abnormal, but not yet malignant) cells of some kind. Think mouth cancer and the pre-cancerous lesions that typically precede actual mouth cancer. Accordingly, a person could be Diagnosed as being normal, pre-cancerous, or have early, middle, or late stage cancer. In the drinking world, a person could similarly be diagnosed as an alcohol abuser, or what would amount to middle or late stage (chronic) alcohol dependence. Proper staging is necessary to not only determine proper treatment, but the likelihood of recovery based upon that treatment.
Within the world of License Appeals, the few lines that make up the “Diagnosis” section of the Substance Abuse Evaluation take up a much larger place in the process than one might expect. Knowing how to prepare for, and subsequently analyze these elements is an important part of producing a winning License Appeal. Without this knowledge, a person can only hope to be lucky.