Michigan Criminal Defense Lawyer Blog
In numerous other articles, I have noted that the substance use evaluation (SUE) is really the foundation of a Michigan driver’s license restoration or clearance case. While true, that’s also a rather general observation, because there is actually a specific section of the SUE that is really critical to the outcome of a license appeal: the prognosis. The importance of the prognosis cannot be overstated, as it is the evaluator’s professional judgment about how likely the subject is to remain alcohol-free for life.
This is important, because winning a driver’s license restoration or clearance appeal requires a person to prove that he or she has not consumed any alcohol (or drugs) for a legally “sufficient” period of time (our firm typically requires a client to have at least 18 months’ of clean time before we’ll move forward with a case) and that they have both the ability and the commitment to never drink again. In that sense, the evaluator’s prognosis is really the main point and “bottom line” of a substance use evaluation.
A person MUST have a favorable prognosis in order to win a license appeal, but, like so much else involved in these cases, there is a lot more to all of this, and much of it is rather subtle. That brings us to the real point of this article: a prognosis must be good enough to win, but when it seems too good to be true, it’s no good at all. This most often becomes an issue when an evaluator gives someone an “excellent” prognosis. It may seem counter-intuitive, but a prognosis of “excellent” can often be a problem, rather than a good thing.
A substance use evaluation must meet certain requirements in order to be considered legally sufficient within the context of a driver’s license restoration case. We could spend all day reviewing those things in detail, but the short version is that the evaluator must accurately list everything relevant about the person’s conviction history, alcohol and drug use history, any and all periods of abstinence (as well as any return to using alcohol and/or drugs), along with everything he or she has done by way of counseling and treatment.
It turns into a huge problem if the Secretary of State discovers that something it considers important wasn’t listed in the evaluation. The hearing officers deciding these cases need to be confident that the evaluator’s conclusions take every last bit of relevant information into consideration. The hearing officers simply cannot presume to know (meaning guess) how anything that wasn’t considered by the evaluator may have impacted or otherwise changed his or her findings.
The Michigan Secretary of State provides a specific substance use evaluation form, and it expects that form to be used, or, if not, then followed exactly in terms of format.
Beyond the expectation that the form be completed (or its format followed), the hearing officers also expect that any substance abuse counselor who completes an evaluation has the requisite qualifications and experience to do so accurately and thoroughly.
Without question, the most important part of the evaluator’s job in the context of a driver’s license appeal is to give an accurate prognosis for a person’s continued abstinence from alcohol (and/or drugs).
Unfortunately, this is where things often start going wrong.
For starters, being an excellent substance abuse counselor is very different than having significant experience doing evaluations for Michigan license appeals.
My team and I have worked closely with our main evaluator for over 10 years. We speak with her just about every day, and often multiple times each day. She sometimes accompanies us to hearings – not as a witness – but to personally observe how the hearing officers interpret and use the evaluations.
A lot of people who hire us have previously tried and lost a driver’s license appeal, either on their own, or with some other lawyer who claimed to “do” these cases.
In that capacity, my team and I have read hundreds and hundreds of evaluations that have been submitted as part of previous losing cases filed by others.
In many of them, their substance use evaluations simply weren’t good enough.
In fact, out of all the evaluations my team and I have reviewed for people who lost before hiring us, we have only found 3 evaluators (1 passed away within about a year of this writing) who did what we would consider a good enough job.
These evaluators stood out so much from the rest of the pack that our office took note, kept their names, and will send clients to them on various occasions, for reasons like conflicts with scheduling times or their location relative to where our client lives (something that’s no longer a problem with everything being done remotely now).
Beyond our main evaluator, these 2 and a few others comprise what I call the “small circle” of evaluators we use. These people are good, not because they’ll produce a favorable evaluation, but rather because they’ll make sure that when they sign their name to the form, the information on it is both accurate and honest.
The substance use evaluation form provides 5 check-boxes in the prognosis section: poor, fair, guarded, good, and excellent.
Legally speaking, a person CANNOT win a license appeal with a poor, fair, or guarded prognosis.
This makes sense, when you think about it.
Given that a person must prove he or she is a safe bet to never drink again in order to succeed in a license appeal, a prediction that his or her chances of doing so are only poor, fair, or otherwise guarded clearly falls short of that mark.
This means, then, that a person can only win a license restoration or clearance case if his or her prognosis is either good, or excellent.
However, as I noted at the outset, “excellent” isn’t all that great.
At first, this seems upside down: If “good” is good, or at least good enough, why wouldn’t “excellent” be better? What could possibly be wrong with an excellent prognosis?
A lot, as it turns out.
Let me turn to our real-world experience for help explaining why. One thing we see in some of the previous appeals people have filed and lost before coming to us is that their evaluations listed them as having an “excellent” prognosis.
The prognosis set forth in any substance use evaluation must be consistent with all of the other things that must be also be accurately and completely listed within it. In addition to that, the prognosis provided must also “jibe” with a person’s larger recovery story.
This is probably easier to understand by looking at a hypothetical.
Assume that Sober Sarah has 4 DUI’s in her past, occurring in 1991, 1994, 1998, and 2000. After her last DUI arrest in June of 2000, Sarah had just had enough, and decided to quit drinking. She went through court-ordered counseling and attended AA for over 2 years.
Sarah had been sober for over 20 years at the time she went for her substance use evaluation as part of her license appeal. When meeting with the evaluator, it was learned that Sarah has been married to the same man for over 15 years. He doesn’t drink, and is fully supportive of her sobriety.
Sarah credits her decision to get sober for all the things that have gotten better in her life, including her rewarding career, repaired relationships with her family, and happy marriage.
Over the years, Sarah has been called on by various friends who, inspired by her decision to quit drinking, sought her advice when they decided to do the same. Although she hasn’t felt the need to go to AA for over 17 years, she almost always directs these “newbies” to get into some kind of substance abuse counseling and to also check out some meetings, as well.
Looking back on it, Sarah is pretty clear that her life was crap while she was drinking, and is profoundly grateful that she was able to turn things around by getting sober.
Among other things, she credits her time in AA as having taught her a few things that became fundamental to her continued sobriety.
Sarah is steadfast in the belief that she can never drink again, and further indicates that it has been so long, she has no desire to do so, anyway. In addition, she notes, drinking had stopped being fun a long time before she was finally able to quit for good.
Sarah is a legitimate candidate for an “excellent” prognosis. Assuming the rest of her evaluation is was sound, a hearing officer would be unlikely to question it.
For contrast, let’s consider the case of Abstinent Al.
He has 2 DUI’s – the first in 2010, and his second in 2016. After his 2nd conviction, Al was ordered by the court to do AA for a year, and he did. He also went to counseling on his own, but stopped going to both AA and counseling shortly after his probation ended in 2018.
Like Sarah, Al’s life really has changed for the better since he gave up drinking, and he credits his sobriety as the reason for all the good things that have happened, including his new job and his fiancé, who supports his sobriety by abstaining from alcohol, as well.
Al broke ties with all of his old drinking buddies, and he really does live a sober lifestyle. Al has no doubt that he can never drink again, and is firmly committed to lifelong sobriety.
Al is a candidate for a “good” prognosis – but not “excellent.”
Simply put, Al needs a lot more sober time under his belt to get to “excellent.”
Although I mentioned it before, what is really important within the context of a license appeal is that a “good” prognosis is good enough, if it’s supported by other indicia of sobriety and a commitment to not drink again.
In other words, assuming the rest of his evaluation was solid, and he otherwise had a good case, an “excellent” prognosis would NOT present any advantage to Al. In fact – and this is the point I’m driving at in this piece – having an “excellent” instead of a “good” prognosis would be a handicap for him, given the length of his sobriety..
Hearing officers look to people like Sarah – people with decades of sobriety – as one of the very few for whom an excellent prognosis is most appropriate.
People with less time are most aptly described as having a “good” prognosis, and, as I’ve been trying to make clear, that’s more than good enough.
Remember, every person who deserves an “excellent” prognosis is someone who, for a long time before that, would have accurately been tagged with a “good” prognosis.
Although an excellent prognosis must be based on more than just a long period of abstinence, the duration of a person’s sobriety is at least a convenient measure – a starting point, if you will – by which its appropriateness in any given case can be measured.
Thus, and generally speaking, if someone with 3 or 4 years of sobriety gets an excellent prognosis, that’s an overreach.
In fact, we see plenty of people with 10 or more years of sobriety who get a “good” prognosis, and, as I’ve bees saying, “good” is good enough.
Beyond just saying that, however, my team and I put my money where our mouths are. We guarantee to win every driver’s license restoration and clearance appeal case we take.
I can honestly say that, of the 200 or so license appeal cases we handle each year, we may see 1 or 2 that get an excellent prognosis.
In other words, “excellent” is reserved for the super-special, extraordinary case for someone with really long-term sobriety.
In fact, there’s a decent chance neither our main evaluator, nor any of the others we use, would give Sarah, in the hypothetical above, anything more than a good prognosis.
And as I’ve been saying over and over (and over), “good” is good enough….
The problem with excellent is that when it’s used for someone with less than long-term abstinence and other extraordinary circumstances underlying his or her sobriety, it looks like BS.
Many years ago, there was a time when there was a bull-rush to various evaluators who would give almost anyone a glowing evaluation for use in license appeals. Lots of lawyers got caught up in this.
Fortunately, our firm knew better, so we never got suckered in by that, but a whole lot of people had to learn the hard way that the hearing officers who decide these cases put great stock into the evaluation, and therefore examine it closely for indicia of accuracy and reliability.
Although it’s not a perfect analogy, think of those “green” clinics that, for $75 or $100, will have a person meet with a doctor for a few minutes, and then sign off on a medical marijuana card.
Everyone knows that a person could go in there and say their hair hurts, and they’d be approved. I doubt these operations have ever said “no” to anyone.
For illustration purposes, assume that someone goes into one of those places, has a 15-minute appointment, tells the doctor that he/she has trouble sleeping sometimes, and then gets his/her application for a medical marijuana card signed.
That’s the equivalent of an “excellent” prognosis for someone who, whatever else, doesn’t at have long-term sobriety.
Next, imagine that a fellow suffering from cancer and undergoing chemotherapy had gone to see his oncologist (with whom he meets regularly) about his lack of appetite, weight loss, and persistent nausea, and that his doctor signed off on a medical marijuana card.
When asked why, the physician replied that although skeptical at first, she decided to allow the client to try this as he was going through intense chemo, and that they had tried just about everything else to help with his lack of appetite and nausea, all to no avail.
The doctor notes that she also makes sure to discuss the patient’s use of marijuana regularly with him in order to make sure that it is consistent with its intended therapeutic benefit.
If someone had to second-guess the decision to sign off on these 2 medical cards, it would seem that the cancer patient with the very involved doctor has far more of an “excellent” reason than the green-clinic client who claimed to have trouble sleeping.
With that, we come back to the proposition that, as far as prognoses go in license appeal cases, “good” is good enough. Moreover, unless “excellent” is clearly warranted, it creates far more problems than it solves.
And there you have it – the problem of the excellent prognosis.
If you are looking for a lawyer to help win back your Michigan driver’s license, or to help obtain the clearance of a Michigan hold on your driving record so that you can get a license in your new state, be a wise consumer and do your homework. Read around, and see how lawyers explain the license appeal process, and how they explain their approach to it.
When you’ve done enough of that, start checking around. Actually talking with a living person is a great way to evaluate different lawyers and law firms. Our firm can handle your Michigan license appeal matter no matter where in the state or the country (or the world, for that matter) you may live.
All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions, explain things, and even compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. to 5:00 p.m. (EST), at either 248-986-9700 or 586-465-1980.