Michigan Criminal Defense Lawyer Blog
The previous article in the driver’s license restoration section of this blog began what I’m calling a loose series (LS) about how license appeal cases work, how I do them, and what’s required to win. We started off in that first piece by examining my first meeting with a new client. In this installment, we’ll pick up by looking at what I described as the “foundation” of a license reinstatement or clearance appeal before the Michigan Secretary of State’s Administrative Hearing Section (AHS), the substance use evaluation, or “SUE.” One point to clarify at the outset is that most people (myself included) often – but incorrectly – call the substance use evaluation a “substance abuse evaluation.” Although we mean the same thing, the correct and technical term used by the state is substance use evaluation, and thus the abbreviation “SUE.” In that last article, I made clear that my first meeting with a new client lasts about 3 hours, and has, as its primary goal, to prepare him or her to leave my office and go to my evaluator to have the SUE completed. The evaluation must be filed with the AHS as part of a larger package of documents to formally begin the license appeal process.
To understand the role of the SUE form, you first need to really grasp its importance. Under the main rule governing license restoration and clearance appeals, the hearing officer is required to “not order that a license be issued” unless a person proves his or her case by what is defined as “clear and convincing evidence.” We will of course, cover the “clear and convincing” evidence standard later, in another installment, but for our purposes now, you can take that to mean that the hearing officer is required to deny your appeal unless the evidence you submit, meaning your proofs, leaves him or her with no unanswered questions. “Clear,” in that sense, means exactly what it sounds like – clear, and unambiguous. Thus, the SUE must be completed with accurate and precise information. There is almost no flexibility here, and certainly no “loose-goosey” or “close enough” with respect to what’s in it. You can’t approximate or leave things out of the evaluation, either, unless those omissions or approximations are appropriately noted and specifically addressed within it. And there’s a quick caution here, because if you don’t know exactly what all that means, then you won’t know if an evaluation is good enough, or not.
The larger idea here is that the evaluation is really important. If it wasn’t, I wouldn’t spend 3 hours getting every new client ready for it. Remember, there are 2 primary issues in license restoration and clearance cases: First, that your alcohol problem is “under control,” (the primary evidence submitted on that score are the letters of support, a subject we’ll cover in the next installment of this series), and second, that your alcohol problem is “likely to remain under control.” The SUE’s primary evidentiary purpose is to address that second, and harder to prove, legal issue. Given its purpose and role in the license appeal process, the point of the evaluation itself is to provide a clinical, independent and objective assessment of how safe a bet you are to not drink again – a direct answer to the question posed by that second issue.
One of the bigger difficulties is that the evaluation “looks” straightforward enough in a way that just about any substance abuse counselor will figure he or she can complete it. As it turns out, the problem lies far more with the state than anywhere else, because the information ultimately required to make its way into the evaluation form by the state is not as obvious as it appears. Instead, the state seeks certain information on the form that simply is not clear from just looking at it. Unfortunately, there is a learning curve here and the ONLY way to get past it is through experience; by getting feedback and learning though one’s mistakes. The very small circle of evaluators I use have, quite literally, tons of experience doing these evaluations. I speak with each of them regularly. Moreover, I send every one of my clients to them with a packet of color-coded and highlighted documents, including a very important form of my own creation called a “Substance Abuse (yeah, I know…) Evaluation Checklist.” This checklist essentially follows the evaluation form, line-by-line, and is completed by me to make sure all of the relevant information about my client is noted.
In the real world, many of my clients are people who have previously tried and lost a license appeal, either on their own, without a lawyer, or with some lawyer who does not specifically concentrate in this field. Part of my job is to read everything from a person’s prior appeal(s), and in all my 27 years, I have only run across a few such evaluations done properly (in fact, that’s how I found 2 of the 5 or so evaluators I use). The rest of the many evaluations I’ve read, although probably done with the best of intentions, fall far short of meeting the state’s requirements. I don’t mean this to sound egotistical, but when I handle a license appeal, I’m the captain/commander/conductor, or whatever you want to call me; I’m in charge. In most of the cases I see where someone has lost before, even if the person had a lawyer, he or she really wasn’t running the show. I know how to win (and guarantee to do so), and what the evaluation has to say to do that. Thus, I send my clients to the evaluator fully prepared and with my checklist to make sure the information that should be on the SUE form actually makes it on there.
I think that most lawyers simply find someone with the credentials to do the evaluation (or have their clients go back to some former counselor) and let him or her take charge of that part of the case. That’s a losing strategy. In my case, beyond being a lawyer, I also know and speak the language of the clinician, as well, having completed a formal, post-graduate program of addiction studies. I understand the legal and clinical implications of everything about the SUE. It’s is kind of like hiring a builder for a new home. He or she gives the plans to the cement contractor and explains, “this is where the driveway goes, and that’s where the walkway goes.” The builder, in other words, is in control. He or she doesn’t just call up a cement company and say, “Hey, come out and put in a driveway and a walkway somewhere.” Yet in many of the license appeal cases that lose, this is, unfortunately, how it was done. In order to win (and I guarantee to win every license case I take), I have to be in control, and that means making sure the evaluation (and everything else) is done properly.
This article is not, of course, intended to be a line-by-line guide on how to put together a winning evaluation. The reader will simply have to assume, for our purposes here, that I know what needs to be done and how to make sure it gets done. For the reader’s part, it is important to know that the evaluation includes an overview of your drinking and legal history. It uses the classic formula of history, diagnosis, prognosis and treatment. The bottom line is that it is the foundation of a license appeal because it is supposed to provide a solid clinical prediction of the likelihood that you will remain alcohol-free. From the state’s perspective, in order to be sufficient, it must provide all the relevant information (i.e., history) for the evaluator to arrive at the proper diagnosis, a solid basis for that diagnosis, and a prognosis that makes sense and is defensible. The treatment recommendation (called the “Continuum of Care Recommendations” on the form itself) can be a particularly sticky issue if it suggests some kind of counseling or support that the client is not involved in, although I make sure it is never a case with any of my cases.
I would be remiss for concluding without making 2 final points:
First, of course, is that absolutely none of this matters if you’re not genuinely sober. The whole point of the license appeal process is to keep anyone who might ever drink again from getting back behind the wheel. I guarantee to win every license appeal case I take, but I absolutely do NOT budge on the sobriety requirement, and am completely uninterested in any case where a person has not genuinely quit drinking.
Second, and although this doesn’t ever affect my clients, it is understandable how and why someone might look for an evaluator who will provide a glowing evaluation. In the real world, that’s as easy for the state to spot as a bad fake ID. The AHS hearing officers are experts at, well, evaluating evaluations. They read them all day, every day. They look for both the accuracy of the information and the integrity of the evaluator, and those things cannot be faked. If you’re going to do a license appeal, do it right. There are no shortcuts to doing a good job.
There is a lot more to the substance abuse evaluation, and, at the risk of sounding like a broken record, that’s why our first meeting lasts about 3 hours. Even then, my job is to prepare you for it, not train you as a lawyer or an evaluator to wrestle with all the nuances involved. If the reader leaves this piece understanding that the evaluation is really important and that it should stand as a reliable clinical estimation of the likelihood that you can remain sober, then I’ll consider that a good day’s work on my part. In our next installment, we’ll turn to the other major evidentiary component in a license appeal, the letters of support, and the critical role they play in the process.
If you have lost your license for multiple DUI’s and have honestly quit drinking, I can and will win your license back, guaranteed. All consultations are done over the phone, right when you call. You can reach my office, and find us here to help, Monday through Friday, from 8:30 a.m until 5:00 p.m (EST) at 586-465-1980.