Michigan Criminal Defense Lawyer Blog
In order to win back your Michigan driver’s license, or, if you left the state but still have a Michigan “hold” on your driving record, you must win a driver’s license restoration appeal before the Michigan Secretary of State’s Driver Assessment and Appeal Division, known as the DAAD. There’s a lot that goes into this, so much so that I often describe the appeal process as having to navigate “a million little rules.” Underlying all of those procedural rules, however, are two really big requirements that essentially govern the license appeal process.
The requirements and standards to win a Michigan license appeal are set out in the DAAD’s “rule 13.” When we boil all of that down, we find that winning a license appeal requires first, proving that your alcohol problem “is under control,” and second, proving that it is “likely to remain under control.” It’s this second (and decidedly more important) issue that will be relevant in this article.
If you’ve done any research into filing a license appeal, then you’ve learned that one of the requirements you have to meet in order to submit your paperwork is to include a current substance abuse evaluation. For all that we can say about the substance abuse evaluation (and I plan on saying quite a bit, actually), we can sum it up by noting that this document is really the primary piece of evidence submitted in a license appeal to prove that your alcohol problem is “likely to remain under control.” The substance abuse evaluation is a clinical professional’s analysis of the likelihood that you will be able to successfully remain abstinent from alcohol. In other words, the substance abuse evaluation provides the evaluator’s professional opinion of how “likely” it is that your alcohol problem will remain under control.
That sounds easy enough. And looking at the substance abuse evaluation form gives no reason for an evaluator to question whether he or she will have any difficulty completing it. Yet within the lines of this standard state form lies a maze of traps and unseen dangers that can kill a license appeal as quickly as showing up for your hearing with an open can of beer.
To be completely honest about it, it was really the critical role of the substance abuse evaluation, more than anything else, that ultimately motivated me to not only become a kind of self-taught “expert” regarding it, but to go back to college (University of Detroit Mercy, a great school that I’m happy to “plug”) and enroll in a graduate program for certification in addiction studies. In the course of more than 23 years in the legal field, I’ve gone from the position of most lawyers, who play a passive role in this part of the process, relying upon the expertise of a substance abuse counselor’s understanding and ability to properly complete the form, to supervising the substance abuse evaluation process and, at times, taking charge and even controlling it. This means that I have had to give a crash course to many substance abuse counselors in what the Secretary of State wants by way of information.
Whether anyone likes it or not, the DAAD hearing officers are being asked, by virtue of having to consider and review the substance abuse evaluation in every license appeal case, to “play” substance abuse expert to a certain extent. While the hearing officers must be lawyers, they are not clinicians. It became apparent to me that in order to properly interface between the world of substance abuse counselors and lawyers, just being a lawyer isn’t good enough. Thus, I moved from being “self-taught” in the field of alcohol and addiction problems and recovery all the way to the university classroom in order learn things from the counselor’s side of things. Now, I not only understand the larger, more well-known concepts of recovery, but also understand the more subtle nuances involved in addictions counseling, and speak both the language of lawyers and the language of the clinicians upon whom we so heavily rely in these cases.
The big benefit I bring with respect to the substance abuse evaluation is that I can make sure any one I review is not only clinically sound, but meets the DAAD’s requirements, as well. One of the more common reasons why a license appeal is denied is that the DAAD finds deficiencies in the substance abuse evaluation. This happens because the vast majority of substance abuse counselors who try to do a substance abuse evaluation have no clue what the state is really looking for. This is not anyone’s fault, except perhaps the Secretary of State’s for not making it clear enough. Any evaluator looking at the substance abuse evaluation form will conclude in a matter of seconds that he or she can complete it. If anything, the state creates the confusion by putting out a form that seems to ask for one thing, while really wanting another.
In the real world, the ultimate responsibility for a substance abuse evaluation that doesn’t satisfy the DAAD rests with the person who files it with the state. If someone tries a “do-it-yourself” license appeal, and gets denied because of problems with the substance abuse evaluation, then he or she got precisely the legal expertise they paid for. If someone paid a lawyer to represent him or her, and the evaluation is found to be lacking, then they clearly did not get what they paid for. It is my responsibility as your license restoration lawyer to make sure the evaluation is rock solid. In any case where a person is represented, it is the attorney’s job to review the evaluation and make sure that it’s sufficient.
I have pretty much eliminated the problem of a deficient or “incomplete/insufficient” substance abuse evaluation in my practice by having a small, limited circle of evaluators to whom I send my clients. To be crystal clear, these are top-notch people of absolute integrity that do a thorough and honest job in evaluating a person’s recovery. Honest, in this case, means providing an accurate and objective evaluation. Various evaluators have come and gone over the years by being overly “helpful,” meaning writing up evaluations that were just too favorable. If the DAAD is good at anything, it’s sniffing out that kind of stuff. Life is messy. Recovery can be messy, and it is a process that sometimes involves missteps and slips and setbacks. An honest evaluation will contain the good, the bad, and the ugly. A good evaluator will know how to include those things as evidence of a person’s commitment to recovery and as valuable lessons learned.
Part of my role as a Michigan driver’s license restoration lawyer fluent in the language of the substance abuse counselor is to translate the ever-changing legal requirements to the evaluator so that he or she knows how the hearing officers are reading evaluations, and what those hearing officers are looking for. While pretty much every licensed substance abuse counselor could take the state’s form and complete it in a way that would make perfect sense to another substance abuse counselor, that kind of information will not necessarily satisfy the DAAD.
As an example, this often occurs in the section of the evaluation called “Continuum of Care.” Here, the state wants to know what addition level of counseling, support or treatment the evaluator thinks a person should have in order to maintain his or her sobriety. The problem often encountered at this point is that if a person is managing to stay sober without AA, for example, and an evaluator who doesn’t know how the DAAD interprets this rather innocently puts down that the person could strengthen his or her recovery by attending some AA meetings, the state will take that as making the person’s prognosis for continued abstinence conditional upon going to AA. This means that the DAAD will conclude that since the person isn’t involved in AA, and the evaluator recommends it, the person should start back with AA and can only achieve a favorable prognosis once he or she begins going to meetings regularly.
That’s not how the evaluator meant it, though. Many evaluators would likely suggest that a person do anything to strengthen his or her commitment to recovery. This is no different than your doctor agreeing that if you were to take up a healthier diet and exercise more it would be good for you. While these suggestions are meant as just that, suggestions, the state considers them recommendations and interprets them in a way that renders the prognosis as conditional.
I don’t have this problem because the evaluators that I work with have learned this. In almost every case I handle, the “Continuum of Care” recommendation is identical to whatever my client is currently doing to stay sober. In other words, there is not additional recommendation. Thus, if Recovery Ron goes to AA twice per week, it will be recommended that he continue attending AA twice per week. If Sobriety Susie simply lives a “sober lifestyle,” it will be recommended that she continue with her sober lifestyle. If Abstinent Alice does yoga and meditates and that helps her stay clean, then it will be recommended that she continue with what is clearly working for her.
If you’re reading this because you, or someone you care about has lost a license appeal, some of this may directly apply to that situation. From my perspective, it is important that, as your lawyer, I can operate seamlessly in both the legal and the clinical domains. From your perspective, as a client, you need to make sure that your evaluator is intimately familiar with how the DAAD hearing officers interpret a substance abuse evaluation. It doesn’t matter how long someone has been a substance abuse counselor, because unless he or she has received. and continues to receive, regular feedback from a driver’s license restoration lawyer, like me, they’re operating in the dark. It’s also imperative that your lawyer has a fundamental understanding of the development, diagnosis and treatment of alcohol and substance abuse problems, including the various ways people recover from them. This requires a lot more than simply “knowing” that AA exists. AA is great, and we now know that of those people who successfully manage to stay sober for the long term, about 1 out of 3 do it through AA. That means, however, that the other 2 out of 3 people don’t need AA. Some of these people get better through things like cognitive behavioral therapy, others through brief interventions, and others through longer term counseling. This kind of knowledge should be a minimum for anyone to hold himself or herself out as qualified to handle Michigan license appeals.
In the final analysis, the substance abuse evaluation is the very foundation upon which your license appeal is based. It absolutely must be airtight. In order to get an evaluation of that caliber, you’ll need a Michigan driver’s license restoration lawyer, like me, who not only understands the nuances of having it completed properly, but will double and triple check to make sure that it has been done the way the DAAD requires before filing it with the state. In addition, you’ll need to be evaluated by a substance abuse counselor who has been properly “trained” to provide the information the Secretary o State wants. This isn’t just a “winning combination,” it’s a basic requirement to win. I provide this level of expertise as a matter of course within my practice, and that’s why I am unique amongst lawyers in that I provide a guaranteed win in every license restoration case I take.