Michigan Criminal Defense Lawyer Blog
I have written extensively about the requirement that a person be truly sober in order to win a Michigan driver’s license restoration or clearance appeal. If you’ve done your research, you get that. This article will really cut to the heart of the “meat and potatoes” issue in a driver’s license appeal case and focus on what the Michigan Secretary of State’s DAAD (Driver Assessment and Appeal Division) is really concerned about when it decides a license reinstatement case.
In other articles, I’ve explained how the substance abuse evaluation is really the foundation of every license appeal. That’s why my first meeting with a new client (which takes place before the person has his or her evaluation completed) takes about 3 hours, and is primarily dedicated to making sure he or she is prepared to meet with the evaluator and get a good evaluation. I explain that the evaluation has to be “water tight,” meaning that it has to be perfect, or very close to it. There is no room for error here, and anyone who has tried and lost a prior appeal because of some problem with his or her evaluation knows that all too well. An evaluation has to be checked and re-checked before it is filed with the state. It is not up to the evaluator to understand the legal implications of what he or she writes; that’s the lawyer’s job.
In that sense, the evaluation serves a primary purpose – to provide the hearing officer with a competent clinical assessment of how likely a person is to remain abstinent from alcohol. In a way, it is a kind of “sobriety estimator.” The real crux of the evaluation form itself is the “prognosis” section. The prognosis itself is just a checkbox where the evaluator picks on of the 5 choices: Poor, fair, guarded, good or excellent. Beneath the checkbox is a space where the evaluator explains the reasoning behind his or her prognosis. This is extremely important, and a good evaluator can do it in just a few sentences. The evaluators at the clinic I use normally summarize their reasoning in about 2 to 4 lines, within the space provided on the DAAD’s substance abuse evaluation form.
This part of the evaluation is examined very closely. At first glance, you might think that the best thing that could happen is that the evaluator checks the “excellent” box. In almost every case, however, that’s dead wrong. From the state’s point of view, an “excellent” prognosis for continued abstinence from alcohol may be fine for someone with 17 years of sobriety, who attends AA twice a week, has outlived his or her first sponsor, sponsors a person or two, and runs the semi-annual 4th step retreat, but not for most anyone else. And what matters most, at least to anyone trying to win his or her license back, is that the next level down, “good,” is more than good enough. In the real world, an “excellent” prognosis will usually create more problems that it will solve, unless you are Mr. or Mrs. 17-years, as described above.
Do you remember, when you were a little kid, those certain rides that had a pointer by the line that said something like “You must be this tall (and the pointer, or finger, or whatever showed exactly how high) to get on this ride”? The same thing holds true for a prognosis; if you get good, then that’s good enough. Just like being taller than the pointer didn’t get you a better seat on the ride, having an “excellent” prognosis doesn’t really give you any advantage in a license appeal, but it can, expect in the most exceptional of cases, create problems we don’t need.
When you break it all down, the state is looking to see if the “expert,” meaning the evaluator, has provided a genuinely reliable and favorable prognosis, because the end result is that if there is any room to doubt it, then the appeal must be denied. Remember, the DAAD does not screw around with anyone who wants to argue that he or she can have the occasional beer or glass of wine. The only way to win a license appeal is to prove that you have changed you life rather drastically, and have not only been completely alcohol-free for however long you claim, but that you will remain alcohol-free, living a sober lifestyle, forever. Accordingly, the DAAD wants to make sure the evaluator is fairly and objectively making what amounts to a prediction that you will never drink again.
Anyone who has been around AA, even briefly, knows that the recovery world is full of people who maintained abstinence for years and years, only to have a “slip.” One of the lessons of AA is that you can’t take your sobriety for granted. This is part of what is meant by the saying that alcohol is “cunning, baffling and powerful.” People get complacent to the point of sometimes being over-confident, and suddenly, in the blink of an eye, they drink again. Don’t think for a minute that the DAAD doesn’t see plenty of people who came in, did the whole “sobriety” song and dance, won their license back, only to lose it again sometime later for another DUI. While it is understandable that any one particular person may protest, “Not me! I really mean it! I will NEVER drink again…!” the DAAD has enough experience to know that, as the other saying goes, “The proof is in the pudding.”
This is why the DAAD is skeptical, and, when you think about it, must be skeptical. The prognosis in a substance abuse evaluation is considered by minds that have a certain perspective shaped by years of experience. And the brutal truth is that no matter how you cut it, the vast majority of people who develop a drinking problem do not get over it, and are not able to maintain long-term abstinence. In fact, mountains of statistics built on study after study consistently demonstrate that more than 90% of alcoholics don’t get better. It is against this backdrop that the DAAD has to review the prognosis that someone is a “good” or “excellent” bet to remain sober for the rest of his or her life.
Here’s another important fact: Your case must and will be denied if your prognosis is poor, fair or guarded. This is so critical that I need to restate it: IF YOUR PROGNOSIS IS POOR, FAIR OR GUARDED, THE LAW REQUIRES THAT YOUR APPEAL BE DENIED. Sometimes, when I meet with someone who has tried and lost an appeal on his or her own, or with some lawyer who claims to “do” appeals (meaning I didn’t handle the case that lost), they’ll get mad that their evaluator or lawyer didn’t realize that a prognosis of poor, guarded or fair on the substance abuse evaluation means an automatic denial and went ahead and filed it anyway. About the only thing I can say to that is that I wouldn’t have done it…
In all fairness, however, it’s not the evaluator’s job to know the legalities, but you might be surprised how many lawyers I talk to who don’t know better. The larger point, however, is that the only 2 diagnosis that will work are “good” and “excellent,” and, as we have seen, “excellent” is more often a problem rather than a help. That more or less leaves us with “good,” and “good,” as I’ve note, is good enough…
All of this is relevant to the larger role of the substance abuse evaluation. There is an old saying that “You don’t know what you don’t know,” and that’s true on multiple levels. For some people, however, there’s a quick lesson in this when they lose a license appeal and find out that they were denied because of some problem with the substance abuse evaluation. Sometimes, the sting is a bit sharper when the denial focuses on their prognosis, and they wonder why the “experts’ they hired didn’t know better. Again, you don’t know what you don’t know, but at least I do, and I back that up by guaranteeing a win in every license appeal case I take. The catch? You have to really be sober, first. And when you consider that the whole point of this article is about the DAAD wanting to make sure that your prognosis to remain alcohol free is good, and based on sound analysis, doesn’t that just make sense, anyway?