Michigan Criminal Defense Lawyer Blog
In the context of a Michigan driver’s license restoration appeal, the substance abuse evaluation plays a critical and foundational role. There are 2 primary issues the Michigan Secretary of State Administrative Hearing Section hearing officer must decide in a license appeal case: First, that your alcohol problem is “under control,” and second, that it is “likely to remain under control.” It is the second issue that is the most important and the real “meat and potatoes,” of a driver’s license reinstatement case. It all boils down to this key question: Are you a safe bet to remain alcohol free? In this article, we will examine the substance abuse evaluation as a clinical assessment relative to that second issue. The main goal of this blog installment will be to focus on the importance of the prognosis section of the evaluation form. Accordingly, we’ll restrict our inquiry here to how the prognosis section of the evaluation answers that key question.
The very term “substance abuse evaluation” is somewhat broad and vague. An evaluation is, after all, just that; an evaluation, or assessment. In this sense, the word “evaluation” functions as a verb, or an act. Someone evaluates you. And while that does, indeed, take place here, it is the final written product, meaning the substance abuse evaluation form, that we’ll discuss. A substance abuse counselor undertakes the process of evaluating someone and completing the state’s form. To add confusion to the mix (rather than clarity), when a substance abuse counselor does an evaluation, he or she is often called the “evaluator.” Thus, the evaluator will evaluate the client and then complete the evaluation. We’ll try to use more precise language here to keep things straight as we go along.
I would be remiss if I didn’t point out something about myself that is directly relevant to all of this. Beyond just being a lawyer, and even a “driver’s license restoration lawyer,” I also have a formal, post-graduate education in the field of addiction studies. This means that I have been trained in the language used by substance abuse counselors. When a lawyer or hearing officer reads a substance abuse evaluation, he or she is expected to understand the legal implications of the information provided, and at least have a rudimentary concept of the more important clinical terms. When I look at an evaluation, I see all of the clinical and legal aspects clear as day – every last one of them. If there is ever a question about the clinical meaning of something on the evaluation form, or how the evaluation was completed, I can answer it fully because I speak the language of both the lawyer and the clinician. It is this specialized training and unique skill set that, in part, allows me to guarantee that I will win every license appeal case I accept…
Without a doubt, the required starting point in any license clearance or restoration case is that you are really and truly sober. The whole point of the driver’s license restoration process is to make sure a person is “likely” to remain sober. None of the things you must submit or prove in a license reinstatement appeal make much sense unless you understand that the Michigan Secretary of State sees any and everyone one who has lost a license for multiple DUI’s as an unacceptable risk to put back on the road unless he or she proves that there is no chance they will drink and drive again because, in the first place, there is virtually no chance they will ever drink again. Anyone who still drinks, or thinks he or she can still drink, or even has alcohol anywhere around him or her (meaning that it is kept in the home, even if by and for other people) is seen as too risky to put back on the road. Remember, a license appeal is not an exercise in fairness or some kind of referendum on constitutional rights. Rather, it is very much an uphill battle to win back the privilege to drive.
In fact, the rules governing license appeals can essentially be interpreted as a consensus that anyone who has lost his or her license for multiple DUI’s should never get back behind the wheel unless he or she can prove alcohol is so far removed from his or her life, by what the law calls “clear and convincing evidence,” that the hearing officer finds it “likely” that he or she will never drink again. In other words, you not only have to prove you quit drinking, but that you are, without question, a safe bet to never drink again. If there is any question about that, then your case is a loser.
This is exactly what the “prognosis” section of the substance abuse evaluation form is supposed to answer. A prognosis is a kind of prediction. For example, if you break your leg in 3 places, the Orthopedic physician will give you a prognosis regarding its healing. That prognosis may be excellent (a full recovery), good (you should “pretty much” get back to normal), fair (you’ll walk again but with a slight limp), guarded (how well you’ll recover depends on how the bones grow back together over the next few weeks) or poor (you’ll need a metal rod implanted, will often feel pain, and will always walk with a pronounced limp). In the same way, the substance abuse evaluation has a specific section where the counselor has to check one of the following boxes regarding the likelihood that you will remain abstinent from alcohol: Excellent, good, fair, guarded or poor.
This is huge. By law, you can ONLY win a license appeal if either the “excellent” or “good” boxes are checked. In other words, your appeal MUST be denied if the evaluator checks “fair,” “guarded” or “poor.” And if this isn’t enough, in almost all cases, a prognosis of “excellent” is far more harmful that helpful. Let’s look at this a little closer…
Because the most important issue in a license reinstatement case is that you are “likely” to never drink again, the most relevant piece of evidence on that score is the prognosis section of the substance abuse evaluation. Of course, it was just as simple as finding some evaluator to check the “good” or “excellent” box, this wouldn’t be much of a process. Before it can even be considered as evidence, the substance abuse evaluation itself has to meet certain clinical and legal standards precisely to make sure that its prognosis (prediction) is truly reliable.
This is another area where I could go off and write a book, but our takeaway here is that the evaluation must be done by a credentialed, qualified clinician, be clinically sound, and bear certain other hallmarks that make it legally adequate and favorable. In the real world, I avoid all kinds of potential troubles by using a few evaluators with whom I deal almost daily. These evaluators spend their days as working substance abuse professionals. They are people of unquestionable integrity who also know the countless subtle nuances involved in drafting an evaluation to be used in a license appeal. Almost without exception, when someone shows me an evaluation completed by someone outside the circle of evaluators I use, there are problems. Again, there is a lot to this, but I avoid all of it by using the right people.
The problem with an “excellent” prognosis is that, while it sounds good, in practice, only a very small segment of people are honestly “excellent” candidates to be seen as unquestionably likely to remain sober for life. Statistically speaking, the 5-year mark is a pretty important benchmark for predicting continued abstinence from alcohol. While nothing is cast in stone, there is a significant drop-off in the rate of relapse once a person has maintained 5 years of sobriety. Therefore, it is almost illogical for an evaluation to give anyone with less than 5 years’ clean an “excellent” prognosis. Even then, the books are filled with stories of people who relapse after 7, 12 or even 17 years on the wagon. Maybe Old Bill, who has been in AA for 27 years, has outlived his first sponsor, has 2 or 3 sponsees himself, who has been the longtime treasurer for the Thursday night meeting, and who organizes and runs the annual 4th step retreat weekend may deserve an “excellent” prognosis. Little Jimmy, on the other hand, who has 3 and ½ years sober and who went to AA for the first 2 years is not a candidate for “excellent.” He may be “good,” and what’s most important for our discussion is that “good” is good enough. I’d estimate that 99% of my clients (and remember, I guarantee a win, so I’m talking about people for whom I win license appeals, not just people who file them) get a “good” prognosis. Because “good” is good enough to win, then it’s good enough for us.
The hearing officer deciding the case must first make a preliminary determination as to the accuracy and reliability of the substance abuse evaluation. Once an evaluation satisfies that threshold inquiry, the hearing officer can feel comfortable placing his or her confidence in the clinician’s prognosis, meaning the evaluator’s best professional estimation that the person is (or is not) “likely” to remain abstinent from alcohol. At the end of the day, this is the ultimate answer to the ultimate question, although it is only part of a much larger picture to which we must pay very close attention if we’re going to put a valid driver’s license back in your wallet.