Michigan Criminal Defense Lawyer Blog
In Part 1 of this series, we learned that a person must be legally eligible, in terms of time, to begin the Michigan Driver’s License Restoration process. Beyond just being eligible time-wise, however, if a person has any hope of actually winning back their License, they must also be able to prove that they have quit drinking. The most important piece of evidence bearing on this issue, and the real foundation of any License Appeal or Clearance case, is the “Substance Abuse Evaluation” that must be submitted as part of the initial documentation that must be submitted to the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD) in order to start a License Appeal.
The Substance Abuse Evaluation is a state form that must be filled out by a licensed Substance Abuse Counselor. This form is critically important to a License Appeal. Doing it correctly, so that it is legally adequate, requires that certain, very specific information be listed with absolute accuracy. Anyone who has tried a License Appeal before knows all about this form. In fact, one of the most common reasons that License Appeals (especially “do-it-yourself” efforts) are Denied is due to a “questionable/insufficient substance abuse evaluation.” In the real world, such errors or omissions in the Substance Abuse Evaluation are very costly.
To make matters even tougher, in order to win a License Appeal, a person has to essentially hit a home run and prove their case by what’s called “clear and convincing evidence.” This boils down to mean that the DAAD Hearing Officer is essentially required to look for a reason to Deny an Appeal.
Think of the Substance Abuse Evaluation as the submarine in which you will travel across the lake from the side with no License in order to get to the other side, where your License is waiting for you. If the submarine isn’t watertight, meaning if it leaks, then you’ll never make it to the other side. Now, if prior to setting off, the submarine needs to be inspected, if the Inspector (or, in a License Appeal, the Hearing Officer) finds any leaks in the sub (or, in a License Appeal, the Hearing Officer finds any problems with the Evaluation), then you’ll never even get to begin the journey…
Because I intend to keep this series of articles brief, let me cut to the chase: Most Counselors who “do” Substance Abuse Evaluations in License Appeal cases don’t do them properly. In fact, most screw them up. You read that correctly: Most “Evaluators” have no firm idea of how to do an Evaluation the right way. I completely avoid this problem by having my Evaluations done at a Clinic right by my Office where I know the Evaluators understand what the State wants (and, equally as important, does NOT want) on the form, and are up to date with how the DAAD analyzes things. In fact, I have frequent contact with these Evaluators and provide them with feedback so that they have a current and working knowledge of how the DAAD interprets the information they provide.
In terms of what’s required, the Substance Abuse Evaluation form requires the following:
- An EXACT listing of all your DUI’s and other, Non-Driving Convictions
- All of the Alcohol and Substance Abuse Classes, Counseling and Programs you’ve attended in your life
- A summary of any and all AA or other Support Groups you’ve been to
- A PRECISE, DSM-IV Diagnosis of your alcohol and/or Substance Abuse Problem(s)
- The Diagnostic Test you actually took
- A list of all medications you are on and the results of your Urine Test
- Your complete lifetime abstinence history from alcohol and/or drugs
- A COMPETENT and consistent Prognosis about your future drinking and/or drug use
- A Recommendation concerning what level of Counseling or Support, if any, you need to achieve and/or maintain Sobriety
How that information is provided is as important as the fact that it is provided in the first place. As a starter, the DAAD requires accuracy. The problem with Substance Abuse Evaluations, in general, is that pretty much any License Substance Abuse Counselor can look at the form and figure “Oh, I can fill that out.” But there’s more to it than just filling in the spaces. One common mistake I’ve seen is that an Evaluator, in the hopes of being “thorough,” will want to include more information than there is room for on the form. To work around this, they’ll type in “see attached.” At first glance, you might wonder “what’s wrong with that…?”
Everything.
Imagine your accountant doing your taxes, and instead of putting numbers in a box on your tax form, he or she writes in, “See attached.” The IRS does NOT want an attachment. It designs its forms so that those things that matter to it can be placed where designated. Every time I’ve ever seen a “See attached” in the context of a Substance Abuse Evaluation, I’ve seen a mistake made by an Evaluator who does not understand what specific information the DAAD is looking for.
To be fair to most of the Substance Abuse Evaluators that I seem to be bashing, they don’t ever get the benefit of feedback from anyone about how to correctly fill out an Evaluation. In other words, if they don’t include what the State feels is some necessary information, and then the person for whom they’ve done the Evaluation loses, it’s not likely that the person will ever call the Evaluator and point out what the DAAD found missing. By the same token, even if a person wins, the Evaluator is not likely to hear back from them, either, pointing out exactly what they got right. In a way, this is no different you taking a written test, and then never hearing how you scored, and what you got right, or wrong.
To make all of this easy, I’ve reduced the process, at least as it’s done in my Office, to a science. I have each of my Clients come and meet with me for 3 hours just to prepare to meet with the Evaluator to have the Substance Abuse Evaluation completed. I have developed my own “Substance Abuse Evaluation Checklist” that I fill out and send with my Clients to make sure that every single detail of the Evaluation is done accurately, completely and properly. For out-of-state Clients who need a Clearance of the Michigan “hold” upon their Driving Record in order to obtain a License in a new state, my Office helps arrange it so that the Client comes to meet with me first, for 3 hours, then go directly from my Office a few blocks to the local Clinic I use to have my Evaluations done so they can get everything done in a single day.
Remember, the Substance Abuse Evaluation is the very foundation of a License Appeal. Without a solid foundation, nothing will stand. There is no “good enough” standard here. Just like that submarine we spoke of earlier, it is either watertight, or it leaks. The Substance Abuse Evaluation must be near perfect. I make sure that happens for my Clients, and even back that up with a first-time win Guarantee.
In the next installment, we’ll take a look at another part of the documentary evidence that must be submitted when a License Appeal is filed – the Letters of Support.