Michigan Criminal Defense Lawyer Blog
After years of looking for a way to handle out-of-state Driver’s License Clearance Appeals without the return trips to Michigan and being able to still guarantee a win, as I do with regular License Appeals that require a person appear for an actual Hearing, I’ve finally found one. At first, this appears to contradict my strong position that these “Appeals by mail,” called Administrative Reviews, are generally losing propositions. The challenge, then, was to find away around the odds, and be able to do that well enough to still guarantee a winning result. I’ve met the challenge and fixed that problem.
Nothing will ever convince me that there is a better way to handle an out-of-state License Clearance Appeal than coming back to Michigan. I have that process down to a science. But I have also come to understand that making 2 trips back to Michigan to do this can just be too much for many people. For some, it’s cost prohibitive, while for others, it’s a lack of time, rather than funds. Whatever the reasons, there are a lot of people who simply cannot or will not make the 2 trips back to Michigan. In recognition of that, I’ve struggled to find a way to help them and still be able to offer a win Guarantee.
It would have been rather easy for me to offer some unguaranteed plan to handle an Administrative Review. In fact, most people “wing” these on their own, which no doubt accounts for the overwhelmingly unfavorable results (3 out of 4 lose). Yet my goal is always to win, and beyond just talking a good game, I wouldn’t think of doing anything that I couldn’t back up with a Guarantee.
A number of logistical challenges had to be put to rest before I could even get to the more substantive issues. I’ll spare the reader the minutia of all that, and move on to the most important issue, and how I came to resolve that.
This was the problem of the Substance Abuse Evaluation. I have noted many times that most Substance Abuse Counselors in Michigan don’t know how to do them properly. That’s not a knock to them; unless an Evaluator has received careful and specific instruction as to how to properly fill out Michigan’s form, emphasis on certain areas will be overlooked, and likely misplaced in others. The form itself only looks self-explanatory; it’s not. In reality, it’s more like a minefield.
I have to meet with a new Client for 3 hours just to prepare them to undergo this Evaluation. If you come to Michigan, we’ll meet in my Office for 3 hours. From there, you’ll go to a local Clinic to have your Evaluation completed. If you hire me for an Administrative Review, we still need to do the 3 hour thing, but we can do it by Skype or by phone. These first “meetings” will be done during regular business hours (eastern standard time) and will be just like a regular appointment in my Office. My staff will forward a folder of material to you before our first meeting. This way, when we undertake that “meeting,” you’ll have various forms in front of you so that we can go over them during our initial 3 hours together. When we’re done, I’ll instruct you to find an Evaluator, local to you, who will do the Michigan Evaluation under my direction and guidance.
Here, in Michigan, the solution is for me to send my Clients to a particular local Clinic, or a few other places where I know the Evaluators have a deep and detailed understanding of how to properly complete the required Michigan Substance Abuse Evaluation. Outside of this somewhat elite circle of Evaluators that I use, quality control is left to chance. The sticking point to being able to do an Administrative Review was finding a good Evaluator.
As I thought about it, I realized that I was going to have to equip my out-of-state Clients with a blank Substance Abuse Evaluation form, or at least a PDF link for one, and have THEM shop around for a good Evaluator. “Good,” in this case, means someone who will work with me, and allow me to walk them through the process. I will have to forward to any such Evaluator a few sample, redacted Evaluations that have been done properly in other cases, and then explain things to them. This, of course, means a lot more work for me and for the Evaluator. Given that the Evaluator is going to have to spend some quality time with me going over the Michigan Evaluation process, a person can expect the Evaluation to cost more than if they just handed the form over and said, “here, fill this out…” Even so, and even if the Evaluator charges double what they otherwise would, this puts me in the driver’s seat for quality control and certainly costs a lot less, in both time and money, than 2 roundtrips back to Michigan.
Part and parcel of exercising the right level of quality control over a License Appeal case is carefully reviewing the Substance Abuse Evaluation once it had been completed. My job is to be a perfectionist. I have to be a detail person. When I see something that I don’t like on an Evaluation, I get it changed. This means that if an out-of-state Evaluator puts something in a way that I think would be better left out, or stated differently, I’ll be on the phone to them getting whatever I see as a problem fixed. This will always be more likely, and more time-consuming when any the Michigan Substance Abuse Evaluation is done by anyone for whom doing them isn’t a regular and substantial part of their livelihood. Of course, this will always be the case for an out-of-state Evaluator.
Realistically, it’s going to require a lot more time and effort into getting the Substance Evaluation just right for an Administrative Appeal than it would for a regular License Clearance Appeal where the Client comes back to Michigan. Moreover, given that once the documents are filed, the evidence is forever “locked in,” it becomes imperative to check, double-check and then re-check it to make sure it’s perfect. Remember, an Administrative Review is sent to a Hearing Officer on a “blind draw” basis, meaning it could win up on the desk of any Hearing Officer anywhere in the state. This means that we cannot plan for the idiosyncrasies of any particular Hearing Officer, nor can we even plan on winding up with one of a limited group. As a result, the Substance Abuse Evaluation and supporting documents must be good enough to meet the idiosyncrasies of every Hearing Officer.
Without a Hearing, there is no chance to explain anything. The Hearing Officer cannot ask what the Evaluator asked, or didn’t ask about. There is no opportunity to clarify or explain anything whatsoever, and since the burden upon us is to prove our case by “Clear and Convincing Evidence,” this means that we cannot leave room for the Hearing Officer to have any questions. Think about it for a moment: If the Hearing Officer reviews the documents submitted in an Administrative Review and has any questions at all, the inability to ask them (and the corresponding inability to get any answers to them) means that such unanswered questions will likely make the proofs fall far short of “Clear and Convincing.”
Of course, I think much of this is obviated if a person comes to Michigan to meet with me before they have their Substance Abuse Evaluation done here, and then returns later for a live Hearing, but I also think that I’ve come up with a darn good workaround. Given that I back this new system up with my Guarantee, there really isn’t anything to lose.