Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began an overview of the role of “Drugs” in a License Appeal. We sketched out a working definition of the terms Alcoholism, Addiction, Cross-Addiction, and Recovery. In this second part, we’ll continue our examination of those concepts, and how they merge into the larger subjects of Mind or Mood-Altering Substances, and the overriding concern that anyone trying to remain clean and sober avoid them all.
Every person with any kind of Substance Abuse problem has a “drug” of choice. This means a favored substance above all others, and one to which they would familiarly retreat while in the grasp of their problem. Thus, a person with an alcohol problem will seek more alcohol. A person with a Vicodin problem will seek more Vicodin. Ditto for Marijuana, and any other substance you can name.
But what happens to a person with a drinking problem if they are kept away from the booze? Or anyone who is kept away from their “drug of choice?”
They will, unless properly counseled and educated, simply substitute another drug. Sometimes it can happen by accident, other times by design, but either way, a person with any kind of Substance Abuse problem is, underneath it all, more addicted to altering their mind and mood than they are their particular substance of choice.
This means a person with a drinking problem who is abstaining from alcohol, and who does not know better, will start getting their buzz from tranquilizers, or pain-killers, or whatever other substance they are exposed to. This is a clear example of “Cross-Addiction.”
On the other hand, imagine a person who had a drug problem, but never really cared for alcohol. Even if they are abstinent from drugs, that person will begin to “substitute” alcohol in place of the drug if they ever drink. This is another vivid example of “Cross-Addiction.”
So why does the use of another substance beyond one’s favorite (“Drug of choice”) lead to developing a problem with “Cross-Addiction?”
Because underlying every Drug and alcohol problem is a more basic problem of altering one’s mind, or mood. In other words, even though a person has a “drug” of choice, that drug just represents their favorite way of altering their mind, or mood, and not the only way to do that.
Once a person starts to develop a problem with any kind of substance, they are equally and likewise developing a problem with altering their mind and/or mood. Underneath the preference for a “Drug of choice” lies an ever-growing problem with getting a “buzz.” They may not have ever thought of it that way, but it is essentially an accepted fact that anyone with an alcohol or Drug problem, when getting clean, must avoid any alcohol an/or mind or mood altering substances.
This is why, as part of any alcohol or Drug Counseling, Education, or Rehab program, every participant is told to completely and totally refrain from using any alcohol or other mind or mood-altering substances. It’s also why most Courts, when they test a Probationer, test for BOTH alcohol and Drugs, even though a person is only on Probation for one or the other.
Thus, when the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD) conducts a Hearing and examines a person who has Appealed for a License, a significant part of that inquiry involves their whole history of drug use, including any current medications or even past prescriptions.
As I mentioned at the outset of this discussion, the vast majority of License Appeals involve multiple DUI convictions. A much smaller percentage involve some combination of alcohol and Drug-related driving convictions. Obviously, if a person has a Drug-related driving conviction, or any Drug-related conviction, for that matter, on their Record, the DAAD is going to look very closely at the person’s history of Drug use, and examine them accordingly.
Accordingly, the issue of Drugs is always relevant, even in those Appeals which involve NO Record of Drug-related driving convictions, or where there is no history of Drug use whatsoever.
Let’s look at an example. Sober Sam has been alcohol-free for about 4 years. He had gone to AA for a while, then felt strong enough in his own Sobriety to simply live an alcohol-free, abstinent life. About a year and a half ago, however, he injured his back at work. After surgery, the pain still persisted. As a result, his Doctor put him on Vicodin, to be taken as needed.
Now let’s assume Sam goes in to see some Lawyer who says he “does” License Restorations. After they meet (and without spending the 2 and a ½ to 3 hours like I do with my Clients at our first meeting, preparing for the Substance Abuse Evaluation), Sam goes to a Clinic and has his Substance Abuse Evaluation completed. As it turns out, he hasn’t had a Vicodin in a few days, so there’s none in his urine.
Sam’s Lawyer files for a Hearing, and both he and the Lawyer turn up in front of the Hearing Officer. During the Hearing, the Hearing Officer asks (as they ALWAYS do) if Sam is on any prescription medication. Sam replies that he sometimes uses Vicodin for back pain, but that he has a valid prescription.
Appeal lost, right then and there. That’s it – Game over.
The Hearing Officer will ask why that fact doesn’t show up in Sam’s Substance Abuse Evaluation, and will further ask Sam if his Doctor knows that he’s supposedly in Recovery. The Hearing Officer will likely grill Sam about his understanding of the need to refrain from using an potentially addictive and or mind or mood-altering substances.
His Substance Abuse Evaluation will be considered inaccurate, incomplete because it does not include Sam’s use of Vicodin, whether by prescription or not. Sam will be deemed to have failed to prove his case by the legally required “Clear and Convincing Evidence.”
This is where things get serious. As I noted, Sam has already lost his Appeal based upon the omission of his Vicodin prescription in his Substance Abuse Evaluation. The answers to the remainder of the Hearing Officer’s questions cannot help him salvage this Appeal, but will detail his level of understanding (or lack of it) regarding the need for a person in Recovery to refrain from using any mind or mood-altering substances. And whatever he says will be looked at next year, if and when he files his next Appeal.
If Sam is astute enough to point out that he does understand the addictive and mind-altering nature of Vicodin, and that his Doctor closely monitors his use, knowing about Sams’s alcohol problem, and that he only uses it when the pain is so bad he can’t stand it, then he will at least NOT be handicapped by an apparent, fundamental lack of understanding of the concept of Cross-Addiction at his next Appeal.
If Sam’s response is any less clear about his understanding of the problem with his use of Vicodin, then at his next Appeal, he will have to show a comprehensive improvement in his overall understanding of Recovery, and will end up looking quite a bit like a guy who has been Sober, and has understood of the concepts of Alcoholism, Addiction, Cross-Addiction, and Recovery for only about the last year. Not good.
Of course, if Sam had seen me, or at least a License Restoration specialist like me, he would have been asked about his use of any prescription medications, current or past, as he was being prepped for the Substance Abuse Evaluation. Being asked about it for the first time at the Hearing is really his Lawyer’s fault.
In part 3 of this article, we’ll continue our examination of the role of “Drugs” in a License Appeal, and look at another real-world example that is relatively common in License Appeals.