Michigan Criminal Defense Lawyer Blog
In Part 2 of this article, we examined the 2 types of License Appeals (Administrative Review or full Hearing) a person can file, depending on where they live, if they seek Restoration (or Clearance) after a Revocation for multiple DUI’s.
In this third Part, we will begin examining the 2 pieces of information that must be filed when either type of Appeal is filed.
In order to begin any kind of Driver’s License Restoration Appeal, a person must file at least 2 things with the Secretary of State in Lansing:
- A Substance Abuse Evaluation, and
- At least 3 Letters of Support.
In this installment, we’ll look at the Substance Abuse Evaluation. In the Part 4, we’ll examine the Letters of Support.
The Substance Abuse Evaluation is an actual state form that must be completed by a Substance Abuse Counselor. I have covered this topic in considerable detail on both my website, and in various articles on this blog. One could, quite literally, write a book on this subject alone. For our purposes, we can boil all the detail involved into a few, simple, or at least, simpler points.
The most important thing the Substance Abuse Evaluation provides is a Prognosis. This is the Evaluator’s educated prediction about how likely the person is to remain alcohol and drug-free for the rest of his or her life. This is important because, as we noted earlier in this series, the biggest question before the DAAD is whether or nor the person’s alcohol problem is likely to remain under control, which essentially means how likely (or not) a person is to remain alcohol-free for the rest of their life. If the Prognosis isn’t good enough, then, legally speaking, the Appeal is already lost.
The Prognosis does not stand alone; it is intertwined with all the other sections of the Evaluation itself. Those include the person’s:
- Conviction History
- Lifetime Treatment History (including all classes, counseling and rehab programs)
- Lifetime Support Group History (including AA, NA, Secular Sobriety, etc.
- Diagnosis (as in Alcohol Abuse, Alcohol Dependence, and/or Substance Abuse or Dependence)
- Lifetime Abstinence (aka Relapse) History
- Continuum of Care Recommendation, and
- The Evaluator’s Observations and Analysis of the person’s Recovery.
The principal problem with most Evaluations is that they are not done correctly, or precisely enough. In my 21-plus years of doing License Appeals, I have only seen a handful of Evaluators who get it right. This is no knock against all the others; anyone doing these has no resource to find out how to do it right, and, worse yet, they never get any feedback about what they’ve done right, or what was done wrong, and needs to be changed. Thus, an Evaluator completes the form, hands it to the Client, and, win or lose, most likely never hears about it again.
Imagine a person trying a License Appeal on their own. They ask a Counselor if he or she can complete the form. The Counselor says “Sure. I’ve done lots of those.” So they pay their money, get Evaluated, and file their License Appeal. If they get Denied, and the Hearing Officer notes that the Evaluation was “questionalbe/insufficient.” The person simply goes to someone else next year, figuring that the last Evaluator didn’t know what they were doing. It’s not likely that they will send the Evaluator a copy of their Order of Denial so he or she cans see what was done wrong.
And of course, this means the Evaluator has NO WAY of knowing they did anything wrong, so they’ll figure that they’re doing it right…
Although the outcome may be different, the same thing holds true for most Evaluations that are done correctly. The Evaluator, not having heard back from anyone, figures they’re doing it right, although they have no detailed understanding of how or why they’re doing it right.
In my case, I work with a few evaluators, and in particular, one Clinic a few blocks from my Office, and I routinely discuss the License Appeal process with them. I discuss with them what the DAAD is looking for, and where, and explain what kind of other information that might, at first, seem relevant, is not. We examine complex and unusual situations, such as certain mental health diagnoses, or poly-substance diagnoses, and how those things figure into the Evaluation process.
As I have noted in another article, one clear sign that an Evaluator DOES NOT know the process well is when they attach additional pages. The DAAD provides a form that can and should contain all the information necessary. In this situation, less is definitely more, and more is definitely unnecessary.
A key component to the whole Evaluation process is accuracy. This component is usually what’s missing if a person is Denied, and their Substance Abuse Evaluation is judged to be “questionable/insufficient.” If the reader will refer back to the form itself, we can see how this works by looking at the very first section after the name and address are listed. In the “Conviction History,” the Evaluator is asked to list the persons Driving Convictions, their dates, and the person’s BAC (Bodily Alcohol Content) at the time of each Arrest.
A good Evaluator will REQUIRE a copy of the person’s driving Record, rather than rely upon information the person “recalls.” Why?
If a person claims they got their first DUI in 2001, and their next in 2005, and claims they stopped drinking after that second DUI, then they will have (as of this writing in November of 2011) about 6 years of abstinence.
If it turns out they got their first DUI in 2002, and their second in 2008, then they will only have about 3 years of abstinence, and will look to have a documented drinking problem spanning 6 years, as opposed to 4. This information has the potential to impact their Diagnosis, and any change in the Diagnosis can have a corresponding impact upon the Prognosis.
This becomes clearer when you consider that the DAAD already has the exact information about the person’s Conviction History and BAC scores in front of them. They aren’t finding this out from the Evaluation. Instead, they’re looking to see if the conclusions reached in the Evaluation are based upon accurate information, or if those conclusions were reached based upon inaccurate and/or incomplete information. In a way, it’s a test.
The whole point here is that ANY mistake, anywhere in the Evaluation, can render the whole thing “questionable/insufficient,” and result in a lost Appeal. This degree of particularity continues throughout the whole Evaluation.
Another prime example is marijuana use. Say Driver Don goes in for a License Appeal. He gets his Evaluation done, and when asked by the Evaluator the last time, if ever, that he used marijuana, he indicates that it was back in high school, about 8 years ago. The Evaluator, feeling that such marijuana use is not an issue, omits any reference to it beyond providing the required last use date.
At the Hearing, Don is asked about his marijuana use. He indicates that from his junior to his senior year, he used marijuana on the weekends, mostly. He notes that around the time he graduated, he realized he liked drinking more, so his never used marijuana again.
The Hearing Officer will likely Deny Don’s Appeal, noting that the Evaluator failed to provide a Diagnosis for Don’s past use. What’s so frustrating about this is that Don’s use may have amounted to nothing, really, but the Hearing Office feels that a Diagnosis of “no Diagnosis” should have been provided, because it is also possible that Don had abused marijuana, and may well have earned a “cannabis abuse” diagnosis. The point here is that an Evaluator who knows the DAAD requirements will know that they should provide the “no Diagnosis” Diagnosis, and not simply conclude that there was nothing there, and omit any reference to it.
It may sound picky, but I often sit across the table from new Clients who have tried a prior License Appeal on their own, or with some Lawyer who didn’t specialize in License Appeals, and didn’t know this, only to find out the hard way that this needed to be covered, and got stuck bumming rides for yet another year after their Appeal was Denied.
This is why, in my Office, my FIRST appointment with a new License Client is scheduled for 3 hours, and is dedicated to preparing the Client to undergo their Substance Abuse Evaluation. I need to meet with the Client BEFORE they have this done, and will go over the form, line by line, so that when they go in to have it completed, they know how to respond.
By contrast, and with only a handful of exceptions, when I meet with someone who has already had their Substance Abuse Evaluation completed, I have to show them where it falls short, and how it fails to meet the DAAD’s rather strict requirements. The same holds true for those Clients who want to have their “old Counselor” do the Evaluation. I explain all this to them, and then tell them that they’re free to see their old Counselor to have the Evaluation completed, but that I will (and must, and always do) go over it with a fine-tooth comb, and if it turns out to be less than perfect, we’ll have to disregard it and they’ll have to go to the Clinic by my Office, or another Evaluator with whom I work, in order to get it done right.
To put this all into perspective, the Evaluation is the very foundation of a License Appeal. Everything else is built upon this document. If it’s not perfect, the rest of the Appeal will be doomed. As I have also noted before, there simply are no shortcuts to doing this right, and that means time and effort have to be put into every step. If it was as easy as throwing money at the problem, I’d be rich, and have a lot of spare time. That’s not the case, however. I spend hours and hours with each case, and my Clients likewise have to invest their time into the process. The prize (getting back on the road) is worth the effort, but the cost of not doing it right is catastrophic.
As I indicated, once the Evaluation has been completed, I will be reviewing it with a fine-tooth comb. In fact, before I ever even see the completed Evaluation, Ann, my Senior Assistant, will review it and look to make sure dates are accurate and consistent, and make sure the form has been filled out completely. If she spots a problem, then the Evaluation will be sent back to the Clinic for correction.
If Ann finds no problems, then I review the Evaluation for consistency amongst the number of convictions, the Diagnosis, making sure any mental health issue or any poly-substance issues are properly addressed, and then I look to the Lifetime Abstinence History, the Prognosis, and the Continuum of Care Recommendation, with an eye toward making sure they all tie-in together, are accurate, and, most of all, helpful and favorable for the Appeal.
If the Evaluation, for example, does not give a favorable enough Prognosis, then I’ll have to re-group with the Client and go to “plan B.” I cannot emphasize this enough; you cannot win a License Appeal with an Evaluation that is not perfect, or darn near perfect. Even if the Evaluation “looks” perfect, if it leaves out any important information, or lists anything inaccurately, it will turn out to be nothing more than a “perfect” loser.
This means, then, that just because the Evaluation “seems” good, when reviewed in light of the Client’s actual history, it might be fatally compromised. Thus, when reviewing an Evaluation, I need to refer to the Client’s Driving Record and my notes regarding their counseling, classes, rehab, AA, mental health and drug use history, amongst other things, before I can say it is “good to go.”
Now for some good news: Once the Client has been thoroughly prepared for their Evaluation, and if they go in and get it right, and get an accurate, adequate, and favorable result, they will have done most of the “uphill” work toward winning a License Appeal. While the rest may not be all “downhill,” at least most of the heavy lifting will be out of the way.
In the Part 4, we’ll pick up by examining the requirements for the Letters of Support, the other required documentation that must be submitted when a License Appeal is field in Lansing. Just like the Evaluation, these require a very high level of attention to detail. Unlike the Evaluation, however, they are much easier to handle, and most of that work falls to me, as the Lawyer.