Michigan Criminal Defense Lawyer Blog
In Part 2 of this article, we continued our examination of how and why some License Appeals lose due to what the DAAD calls a “questionable/insufficient Substance Abuse Evaluation.” We began examining the Substance Abuse Evaluation form section by section, noting some of the common sources of errors in its completion that result in the State Denying a License Appeal.
In this 3rd and final Part, we will complete our section by section analysis of the Substance Abuse Evaluation form, then wrap up by looking at how to avoid losing a License Appeal for submitting a flawed Evaluation that the State considers “questionable/insufficient.”
The Drug Screen (meaning Urine Test) section that follows is pretty clear. Despite the very clear request for a 10-panel drug test with at least 2 integrity variables, I have seen Evaluations that try and explain that the lab used by that particular Evaluator ONLY does 7-panel screens. That won’t work. That’s like going to a soda pop vending machine where the price of a Coke is $1.25 and only putting 4 quarters in. It doesn’t fly.
Beyond making sure that a person actually took a 10-panel test, the Lawyer’s job is to make sure that both integrity variables (usually “specific gravity” and the person’s “creatinine level”) are good. In addition, if the person is on any medication that shows up in the drug screen, explaining that is a must. This can include a letter from the person’s physician outlining their condition, the need for the medication, and, if a mind or mood-altering medication MUST be prescribed, why that’s the case, an acknowledgement that the Doctor knows the person is in Recovery, and that he or she is monitoring both the dosage and has determined that the person does not appear to be abusing the medication, or getting more of it from an additional source or sources.
A good Evaluator will address this right out of the gate. A good License Appeal Lawyer will make sure every “i” is dotted and every “t” crossed in such a situation. Unfortunately, some of the Clients I see who have already lost on their first try become angry that either their previous Evaluator and/or Lawyer “didn’t say anything about that to me!”
Next up is a person’s Lifetime Abstinence History. Many readers who filed a prior Appeal and lost may have submitted the older version of this form (still valid, by the way, and more on that later) in which this section was called “Lifetime Relapse History.” Despite the change in name, this section is still asking for the same exact information. Explaining what that means simply requires more space than I can afford without turning this article into a “textbook.” Not to rely too much on an old crutch, but this section is rather important and knowing how to respond to it is part and parcel of why my first meeting with a new Client takes 3 hours. I cannot just “summarize” this, anymore than a Dentist can “summarize” how to do a root canal.
That said, the two “red flags” that most frequently arise in providing this information is a person who appears to have “serial” relapses, or a person who previously had a period of Sobriety, had a slip, and now has less time in this new period of Recovery than they did before their slip. Each of those situations presents a very real, potentially fatal obstacle to winning a License Appeal, and it is the Lawyer’s job to help the Client safely navigate this minefield.
In the previous paragraph, I noted that the “old” form is still valid. Anyone looking at the current State form and who has a copy of the old form can see it looks different. It is different, and for just the reason I am writing this article. The State has tried to “idiot-proof” the form by requiring “check boxes” and providing “dialogue boxes” for the specific information it all too frequently was NOT getting in the old form. The DAAD spent too much time reading extra, attached pages that STILL did not provide the specific, requested information in the Substance Abuse Evaluation form, and has revised that form to try and avoid NOT getting the information it needs, and try and make clear what it does need. As I noted, that hasn’t stopped anyone from still going about it all wrong…
A good example of this is the next section, “Client Prognosis.” I was writing about this a number of years ago, long before the new form was ever published. In fact, some of that early writing is still on my website, where I pointed out that there were only a few categorical Prognoses that would satisfy the request for a “Prognosis.” I have seen Evaluations where the Evaluator has attached multiple pages trying to explain their “Prognosis” without actually giving one! As I note on my site, an acceptable Prognosis can ONLY be “Poor,” “Fair,” “Guarded,” “Good.” or “Excellent.” All the pages in the world, without using one of those specific terms, are useless. But you’d be surprised how many times I see an Evaluation that, for all the extra pages attached to it, DOES NOT have one of those absolutely critical terms in it.
Beyond the necessity of using one of the specific terms discussed above, the Substance Abuse Evaluation form asks for supporting facts regarding the Evaluator’s Prognosis. This is also critical. In fact, this little “dialogue box” may well be the most critical, make-it or break-it component of the whole Substance Abuse Evaluation.
While its importance cannot be overstated, neither can the fact that an effective response to this section should fit in the space provided. Any “need” to provide more information than for which there is space is misguided, and only creates potential problems.
When I meet with a Client for those first 3 hours to prepare them to undergo the Substance Abuse Evaluation, we will spend a significant chunk of that time going over those things that are directly relevant to this section. Each case is unique. What is important and relevant in one case may not matter in another. But within every person’s Recovery is a story, and a big and important part of that story involves how and why they are likely to remain Sober for life.
One element that is common in every case, although the facts of each may be different, is how a person has established a “Sober Lifestyle.” What they’ve done, and what they currently do (as well as, in some cases, what they will be doing in the future) is a core component of having established and the likelihood that they will continue to live a “Sober Lifestyle.”
And while a “Sober Lifestyle” is important, it does not exist in a vacuum, so there are other things that equally affect a person’s prognosis for continued abstinence. Of all the things that matter, simply wanting to “stay out of trouble” and not get another DUI is not one of them. To put it another way, real Sobriety is about a lot more than just not getting Arrested again. And if those considerations even come up, it tends to show that the person cannot attribute enough “positive” characteristics or consequences to being Sober without having to resort to the mere absence of negative consequences as support for their not drinking.
And while this whole explanation may seem esoteric, it is, in reality, critical.
Any drug or alcohol Counselor can probably write about this topic forever. It is, of course, important to their overall work. But the State is less concerned about that than it is those factors that affect a Driver’s License Appeal. An Evaluator familiar with what the State is looking for in a License Appeal will almost automatically be able to confine their remarks to the space provided, despite being able to write far more. And a bona-fide License Restoration Lawyer will know that, and will not only expect that, but also require it.
There is also a practical consideration at play here. The DAAD Hearing Officers spend all day deciding License Appeals. They decide these, in large part, based upon the information provided in their form. They know that everything they need and want in a Substance Abuse Evaluation can be included in the space provided. I’m sure none of them is excited when some Evaluator thinks he or she knows more than they do about what they need, and starts writing a novel and attaching all kinds of extra pages. Short and sweet is really the order of the day.
The final section, at least in terms of placement, and certainly not importance, is the Continuum of Care Recommendation. This is another place where many Evaluations fall short.
Before we get into specifics, I should point out that, in practice, a “good” Continuum of Care Recommendation simply suggests that the person continue to do whatever they are currently doing to maintain their Sobriety.
However, too many Evaluators feel that they know what is best for someone, and often decide that a person should begin (or start back) going to AA, or attend some classes or counseling to support their Sobriety. And while that might make sense in another setting, in a License Appeal, it is often fatal.
Certainly, in any Appeal I accept, a person will necessarily have established a Sober Lifestyle. I help them, of course, put the words to this, but end result is that they will be able to describe how Sobriety is an important part of their life. Even if the person has been Sober so long that remaining Sober is second nature, like breathing, once we’ve covered this topic, they’ll probably be able to speak about it in far more detail than they would have been when they first came in.
Here’s the rub: If a Substance Abuse Evaluation, in all the ways we’ve covered up till now, is good, and favorable, but at the very end, under the Continuum of Care Recommendation, suggests that the person begin attending, or go back to AA, or start or resume some kind of counseling or education, it really means that their Prognosis for continued Sobriety is NOT good enough, at least on its own. In other words, the Evaluator, despite perhaps checking the “good” box under the Prognosis section, feels that the person needs to do something else to maintain their Sobriety.
At least, that’s the way the State sees it. Worse yet, some well-intentioned Evaluators would explain that they thought they were making a suggestion that would ultimately strengthen the person’s Sobriety, like a “just in case” kind of thing. And while they might mean that with as much a grain of salt as the directions on a shampoo bottle, which instruct the user to “wash hair, rinse, and repeat,” the State will interpret such a “suggestion” as more like Clinical advice, and Deny the Appeal, advising the person to come back next year having done what the Evaluator suggested.
This happens more often than the reader might imagine. When I point this out to a new Client, I hear their familiar, understandable exasperation when they say “my Lawyer (meaning the old one, NOT me…) never told me that!”
The Clinic I most frequently use, as well as those other Evaluators on my “short list” will never make a Continuum of Care Recommendation beyond what the person is doing when they come in for their Evaluation. If they do, then it means that they will NOT have given the person a favorable Prognosis in the first place. A favorable Prognosis and a Continuum of Care Recommendation that calls for the person to do something other than what they are already doing to stay Sober (meaning that if they are going to AA, it will be suggested that they continue with AA, and if they are seeing a Counselor, or Psychiatrist or Psychologist, or whatever, it will be suggested that they continue with that until discharged by their provider) are really mutually exclusive.
I suppose this is a rather long-winded of saying that whatever a person is doing cannot be considered good enough, if it’s not good enough without having to do something additional.
Just as in so many of the sections we have examined throughout the course of this article, first blame for this kind of error lies with the Evaluator, but final blame rests squarely on the shoulders of the Lawyer who allowed such a flawed Evaluation to be submitted. In that sense, a person cannot really be held liable for not knowing this if they tried a “do-it-yourself” License Appeal without a Lawyer, but I’m sure it’s no less disappointing to open the envelope from the Secretary of State and discover that you’ve been Denied, whatever the reason or reasons.
Of course, my advice to avoid or fix this is to hire a real Driver’s License Restoration Lawyer in the first place. I’m not here to bash anyone, but I would be remiss if I simply ignored my repeated experience with Clients who have been skeptical of Lawyers in general, or about their previous Lawyer in particular after forking out lots of money for a License Appeal that lost, only to have me show them how it was dead in the water before it ever even began. Thus, I always advise against throwing in with a Lawyer who claims, as I put it, to “do” License Appeals, rather than concentrate in them, as I do. In my practice, License Appeals consume between two-thirds and three-quarters of all my time.
When a Lawyer seems to do “everything,” like handling Wills and Estates and Divorces and Dog Bites and Personal Injury Cases and Rape and Murder Charges and Real Estate Law, chances are good that they do not, in any way, “concentrate” in License Appeals. The time it takes to have such a specialized Practice makes handling any of those kind of cases, much less many or all of them, impossible.
As we have seen, losing a License Appeal because the Substance Abuse Evaluation was “questionable/insufficient” means it was defective in some regard, at least from the State’s point of view. That can mean many things, but among them, it means that the Evaluator who completed the form did NOT know what the State needed as far as information is concerned, and it means that if there was a Lawyer handling the Appeal, he or she likewise did NOT know what the State was looking for.
This is an avoidable situation, be it for a first time Appeal, or in a case where there has been a prior Appeal that was Denied. Avoiding such a Denial involves having the Substance Abuse Evaluation completed by someone who has extensive experience doing License Appeal Substance Abuse Evaluations and knows what specific information the DAAD wants, as well as what it is does not, and hiring a Lawyer with the same background.