Michigan Criminal Defense Lawyer Blog
In part 2 of this article, we examined some of the reasons that an initial, usually “do-it-yourself” License Appeal is lost. In this third and final part, we’ll conclude our discussion with a review of some of the more serious errors that can occur, and how they are fixed in order to win the next Appeal.
Whatever the reason or reasons for a loss, they cannot just be overlooked next year. They must be addressed, and fixed.
I mentioned earlier that the kinds of things that can result in a denial range from the easily fixable to the catastrophic. The examples above (in part 2) would be considered rather easily fixable. What would be catastrophic?
In plenty of my other articles, I have pointed out that the Substance Abuse Evaluation itself is the very foundation of an Appeal. While it can never win an Appeal on its own, it can absolutely be the cause of one that’s lost. In order to help a case, and not hurt it, the Substance Abuse Evaluation must really have 2 essential qualities:
1. It must be “legally adequate” in the eyes of the DAAD, and
2. It must be “favorable” for the person filing the Appeal.
Those qualities are explained thoroughly in my articles about the Substance Abuse Evaluation. Here, we’re looking for an example of a catastrophic error in a “do-it-yourself” Appeal. So we’re clear, this kind of error should never happen when a person has a real, bona-fide License Restoration Lawyer handling their Appeal. In fact, it’s precisely this kind of error that I avoid for my Clients.
Let’s assume a person has submitted a Substance Abuse Evaluation that was “legally adequate,” or, in the DAAD’s view, “sufficient.” Let’s also assume that the Evaluator notes in the Comments section that the person should involve themselves in some kind of Recovery support, such as AA or Counseling. Let’s further assume that are not actively involved in that kind of support at the time of their Hearing.
Of course, they’ll lose their Appeal. That’s a given. The Hearing Officer will note that the Evaluator felt that such support was important to the person’s Recovery, but the person was not so involved at the time of their Hearing.
Yet again: Game over.
But what should they do for next year’s Appeal? Do they now start going to AA? What if they testified that they didn’t like AA, or found it wasn’t for them? How do they address this problem next year, and rectify any inconsistency between their prior testimony and the advice of the Evaluator?
Again, this is precisely the kind of problem that a License Restoration Lawyer would never let arise in the first place, but we’re talking about someone who wanted to give this a run on their own, (or perhaps used some Lawyer who, instead of concentrating in this area, just claims to “do” License Appeals) and not someone who had the help of a License Appeal Lawyer. They have already submitted this Evaluation and lost. How do they fix that?
The answer is: It depends. Depending on the interplay between the previously-submitted evaluation, and the person’s testimony, and how all of that was perceived by the Hearing Officer (as noted in the Order denying their Appeal), a clear plan will have to be formulated to not only specifically address that issue, but to make sure it’s fixed, as well. Every case is unique. It could be (but most often is not) that things are so bad, the person will have to start going to AA and learn some steps, work those steps and be able to discuss those steps. That may take more than a year.
What about the person who gets denied for this reason, and begins going to AA? What if they call me about 6 months into this and candidly admits that they hate AA? Should they be told to just fake it? Or is there another way to get them back on the road without attending meetings they utterly hate? What if they start AA and find they like it?
Again, how all this plays out depends. Of course, the best thing anyone who finds themselves in this kind of position can do is to hop on this right away. Better to retain a License Appeal Lawyer right out of the gate, and start preparing for next year’s Hearing early, rather than blunder around for 6 to 9 months either not doing what would be most helpful, or wasting their time doing something they don’t really need to do in the first place, even though it might appear as if they should.
The point to be made here is that fixing any such problems requires not only a knowledge of what went wrong, what to do about it, and that knowledge comes from knowing the DAAD, the Hearing Officers (Any case I handle is set for Hearing in the Livonia Office of the DAAD, where I know each of the Hearing Officers and their idiosyncrasies and how they view things), but from experience, as well. Frankly, its exactly that kind of knowledge that would have kept this form ever happening in the first place. A person dead-set on doing this again on their own is decidedly disadvantaged. If they win, it will be more by sheer luck than anything else, although after an initial loss, all the luck in the world won’t help overcome the errors in the first Appeal.
And this is a bit of a catch, or “rub” in may perspective that a person who has tried on their own and lost makes a easier to deal with Client than someone who wonders if they can do this on their own in the first place.
There is no doubt that fixing what went wrong the first time will take extra time and effort. Still, I’d rather do that, and have a receptive Client, than have to convince a doubter that what I’m telling them is correct. The person who has gone in and lost on their own will always defer to my expertise much more willingly, and not just because they know they need help. They will have seen how detail-oriented these Appeals are, and will have an almost instinctive sense that my advice and guidance is spot-on.
When someone who has tried on their own (or having used a Lawyer whose “expertise” in this area is limited to a claim that he or she “does” License Appeals) and lost calls me, the first thing I want to see is their Order of Denial. Typically, I’ll have them get that to me, either by e-mail or fax, and will review it (for free, by the way) before I call them back to discuss their case. That Order of denial provides the road map by which a successful, subsequent Appeal can be charted. It tells me, specifically, what was wrong in the first Appeal. It allows me to see what must be addressed and fixed in any subsequent Appeal.
Most of the time, I can do that rather easily. As I noted before, it’s better to start upon that earlier, rather than later.
Of course, anyone who has not gone in and lost has the advantage of getting it right the first time. As I have pointed out, however (perhaps to the point of being a bit overbearing in that regard), I have no inclination to get on the phone with someone who needs to be convinced of all that. Easier for me to let them try it on their own, then call me back to get it right next year.
And this should be a caution to anyone going for a second Appeal. Even if you have a Lawyer, that Lawyer should have made clear how those specific problems outlined in the Order denying your first Appeal need to be addressed and fixed. If that wasn’t the very first order of business, then you might want to seriously consider getting a second opinion.
In a way, this process is kind of like taking a high-school math test. If a person fails that test, and even if they’re given the opportunity to take it again, the results will not improve if they cannot fix the problems that caused the first failure. Thus, any planning for that re-test should involve looking over those problems they got wrong, and coming to understand why that was the case, and how to get them right, as well as knowing how your particular teacher wants your work shown.