Michigan Criminal Defense Lawyer Blog
In part 1 of this article we began examining the role of “Drugs” in a License Appeal by coming up with a working definition of the terms Alcoholism, Addiction, Cross-Addiction, and Recovery. In part 2, we began examining how those concepts are involved in a License Appeal, and we looked at an example, based upon real-world experience, of a person who has been alcohol-free for a few years, but fails to properly disclose and explain a current prescription for Vicodin, and how that will guarantee that his Appeal will be lost.
In this third section, we’ll pick up with another, real-world and fairly common example of how the issue of “Drugs” comes into play in, and can be fatal to a License Appeal, unless properly handled.
There are really 2 kinds of “Drug” offenses that show up on a person’s Driving Record. The first, and by far the most common, are “Drug crimes” like Possession, and even Delivery charges. Because the law requires that a person’s License be Suspended as the result of any Drug conviction (except those deferred under what’s known as Section 7411 or HYTA), the fact that a person had such a conviction automatically shows up on their Driving Record.
The least common kind of case involves Drug-related Driving Offenses. Of those, one of the most common is what’s known as OUID, or Operating Under the Influence of Drugs.
The larger point here is that if any of these Offenses show up on a person’s Driving Record, the Hearing Officer knows the person has some issue with Drugs. Given that the whole License Appeal Process involves a License Revocation for multiple DUI’s or a combination of multiple DUI’s and Drug-related Driving Offenses, it doesn’t take a Rocket Scientist to figure out that the issue of Drug use by the person Appealing is going to be examined pretty closely.
This means that the person Appealing better have a good, working knowledge of the concepts of Alcoholism, Addiction, Cross-Addiction and Recovery. If those terms don’t at least “ring a bell,” to anyone facing a License Appeal, then it’s fair to say that they’re far from ready to begin that Appeal.
If, on the other hand, those terms at least “ring a bell,” even though the person may not be able to thoroughly discuss them, a “refresher course” is in order. From my point of view, this is all part of the process of preparing my Client for the Substance Abuse Evaluation. I certainly don’t spend nearly 3 hours at that first meeting talking baseball.
Most of those actively involved in a Support Group, like AA, should have a basic understanding of these subjects, or at least at understanding of the general concepts underlying them.
Let’s look at a relatively typical case:
Rhonda Recovery has 2 DUI’s on her Record, and that’s the reason for her current Revocation. However, she also has a Possession of Marijuana on her Criminal Record, which came about AFTER her last DUI, and that shows up on her Driving Record as a “Drug Crime.” She doesn’t think she ever had a problem with Drugs, but does admit that she had a Drinking Problem. Her last use of alcohol was on the date of her 2nd (and last) DUI arrest.
She has a Substance Abuse Evaluation completed, and discloses the Drug Crime to the Evaluator, who lists in the appropriate section for convictions. Rhonda, when asked, says she hasn’t smoked Marijuana since her arrest for it. This information is likewise noted on the Substance Abuse Evaluation.
Sitting in the Hearing Room, Rhonda is asked by the Hearing Officer about her past Marijuana use. She explains that even though she had a Possession charge, she was never a heavy user, and has not used since the time of the Possession arrest. When asked to characterize her relationship to alcohol, she candidly admits to having a drinking problem.
So what is Rhonda’s Sobriety date?
Rhonda might be tempted to say it’s the day she stopped drinking, but if she does, she will absolutely lose her Appeal.
Her actual “Sobriety” date can only be no earlier than the date she last used any mind or mood-altering substances.
If Rhonda correctly cites the last time she used Marijuana, which is after her 2nd DUI, as her Sobriety date, she’ll be expected to articulate a fundamental understanding of not only Alcoholism, but Addiction and Cross-Addiction. She’ll be expected to explain that her use of Marijuana, subsequent to her last DUI, was an example of Cross-Addiction. She’ll likewise be expected to genuinely and honestly explain that she understands the need to abstain from using any and all mind or mood-altering substances.
So what happens if Rhonda is on, or has been on some medication for anxiety, depression, or pain?
The whole character of her Appeal changes. She’ll need to have thoroughly discussed that with the evaluator who does her Substance Abuse Evaluation. She better have been properly prepared as to how to discuss it.
If it was my case, I’d want some information from the Doctor who is prescribing her medication. I’d review that information, and if I felt it was good enough, I’d probably have her take it with her when she has her Substance Abuse Evaluation done. If I didn’t feel it properly addressed her situation, I’d make sure we got it that way before she went in to have her Substance Abuse Evaluation completed.
This same issue would need to be adequately and thoroughly gone over as Rhonda and I prepared for her actual Hearing. Beyond there being certain, general question that any Hearing Officer is going to be asking her, I’d make sure we prepared for those that the particular Hearing Officer to which her case has been assigned is likely to be asking. Since I conduct all of my Hearings in the Livonia Office of the DAAD, I know each of the 5 Hearing Officers conducting those Hearings, and I am very familiar with the unique questions that each will ask beyond those general questions that they will all ask.
As Ronda’s case demonstrates, there are a lot of “details” involved in a Driver’s License Restoration Appeal. It’s far to late to begin managing those details at any stage of the process beyond the very beginning. In other words, proper preparation means first examining every element and fact of a case, and making sure the Client knows how each fits into the process. Addressing a “Drug” issue at the Hearing can only be done successfully if it has been properly addressed from the very beginning, even before the Substance Abuse Evaluation is completed.
In part 4 of this article, we’ll overview the role of “Drugs” in a Driver’s License Restoration Appeal. We’ll also review the concepts involved in that role, including Alcoholism, Addiction, Cross-Addiction, Drug of Choice, Recovery and Sobriety.