Michigan Criminal Defense Lawyer Blog
The substance use evaluation is really the foundation of a Michigan driver’s license restoration or clearance appeal. At its most basic, it is supposed to be an objective, clinical examination of a person’s alcohol and drug use history and an assessment of the person’s current relationship to those substances, followed by a prognosis of the likelihood that the person will be able to remain clean and sober. Ultimately, that prognosis is seen as a kind of prediction about the person remaining alcohol and/or drug-free.
The prognosis is provided within its own section of the substance use evaluation form, and the evaluator must check a box indicating that it is either “poor,” “guarded,” “fair,” “good,” or “excellent.” By rule, a license appeal must be denied if the prognosis is either “poor,” “guarded” or “fair.” In other words, you can only win if your prognosis is either “good” or “excellent.” It seems natural to think, then, that “excellent” would be the best prognosis you could get, but that’s actually not correct. In this article, I want to examine some of the more important aspects of the evaluation, including how and why a “good” prognosis is almost always better than “excellent.”
This is kind of an extension of the idea that “more is better.” After all, an “excellent” prognosis certainly seems better than one that is just “good.” In the broader context of recovery, however, and within the more limited scope of a license appeal, the prognosis of “excellent” is reserved for a special few people. For example, some old guy with 28 years of sobriety, who has been attending AA at least twice a week for all that time, has outlived his first sponsor, has 3 sponsees of his own, has been the treasurer of his home group for the last 15 years and who runs the annual 4th step retreat is a candidate for an “excellent” prognosis, while for just about everyone else, “good” is more appropriate. Key here is that a “good” prognosis is more than good enough to win your license appeal, and, in its own right, is an excellent thing to have on your evaluation.
Over the years, more than a few opportunistic evaluators have come and gone by providing a very favorable substance use evaluation to any paying customer. The Secretary of State’s Administrative Hearing Section (AHS) hearing officers have never been fooled by this, and they are always on the lookout for this kind of gimmick. One of the most important components of an evaluation is its integrity. If the state is going to rely upon this document to decide that a person is a safe enough bet to never drink again, then it better be trustworthy in the first place. Although the Secretary of State (SOS) doesn’t give licenses back to anyone whose prognosis for remaining alcohol-free is anything less than good, there is always a small number of people who return to drinking after winning back their licenses, despite having looked like they would remain alcohol-free for good at the time of their hearing.
In fact, you’d be surprised how many people win a license restoration case only to be revoked all over again by picking up yet another DUI or getting caught drinking while on the ignition interlock. The point is that, try as it might, the state cannot avoid giving licenses back to that certain percentage of people who, despite having presented an evaluation that said they were unlikely to drink again, nevertheless go out and do just that. That’s always the big fear, and one of the main goals of the whole license appeal process is to prevent this kind of person from getting back on the road.
This means that while evaluations can be helpful in predicting who won’t drink again, they are far from perfect. Over time, the hearing officers begin to pick up on all kinds of things. Remember, almost everything hearing officers do involves DUI cases, and the overwhelming majority of their day-to-day work focuses on license appeals for people convicted of multiple DUI offenses. After a while, no matter what kind of work a person does, certain patterns emerge. And for all the things that are obvious to the hearing officers, like evaluations that are too favorable, there is and will always be an element of unpredictability about human behavior in any setting. This means that even that guy with 28 years of sobriety who eats, sleeps and drinks sobriety could just one day drink again; it happens.
It is important that the evaluation should not only be accurate and honest, but it should appear to be that way, as well. A well-done evaluation gives the good, the bad and the ugly. However, it’s not as easy as that. The SOS does its part to complicates things, as well. In the real world, just about any substance abuse counselor can examine the substance use evaluation form and figure, “I can do that.” The problem is that completing the form “properly” and providing the kind of information the hearing officers want is not obvious from just looking it over. In fact, I believe that it takes a committed and significant effort from a substance abuse counselor to learn how to do SOS evaluations competently, and it takes even more commitment and effort to be able to do them really well. My main evaluator, who I use in more than 95% of all my driver’s license restoration and clearance appeals, has come with me multiple times, just to sit in and observe what goes on in an actual license appeal hearing, and to see how the evaluations she completed earlier are examined and interpreted by the hearing officers.
A good evaluation, then, begins with a good evaluator. An evaluator has to work at becoming good. This is separate from being a conscientious or good counselor. In other words, practice makes perfect. And once an evaluator has established a good reputation, he or she has to work at maintaining it, as well. If there’s one truism in the broader world that really applies in the small universe of SOS license appeals, it’s that it takes time and effort to build a good reputation, but it only takes one stupid move to destroy it. In other words, if an evaluator EVER does anything that’s not above-board, word of it will spread like wildfire amongst the hearing officers, and those of us with our ears to the ground will find out about it, as well.
In a very real sense, a kind of partnership forms, or at least should form, between an evaluator and the lawyer. Within my office, my evaluator speaks with either my senior assistant, my paralegal, or me at least several times every week, and often several times a day. Of course, I do send DUI and other clients to her, but over the course of many years, I can say that I have spent countless hours with her discussing driver’s license restoration and clearance cases in general, along with specific clients and their evaluations. As a result, she has an understanding of the Michigan license appeal process and the evaluation’s role within it that it light years beyond that of perhaps only a few other evaluators anywhere in the state (and I’d submit that most of those others are part of the small circle that I use from time to time).
It is, of course, natural for an evaluator wants to “help” his or her client. Being a counselor means being squarely within what are known as the helping professions. As much as an evaluator might like a person, or want to help him or her out, however, being honest in the evaluation calls to an even higher goal. What I’m trying to say is that while it will be bad for business in the long run for an evaluator to be overly favorable on evaluations, it’s morally wrong to do that even once, because the state is relying on the evaluator’s integrity to help in the decision to put someone who has lost his or her license for multiple DUI’s back on the road. This isn’t like a teacher rounding a grade up from a B+ to an A, it’s about putting everyone else’s life in danger by not being candid about any risk factors a person may present in terms of ever drinking again. My main evaluator never sells her integrity, and I often tell her that one of the main reasons the state likes her work so much is that they know they can rely upon her.
For as many cases as I send to her (around 200 per year), she provides a candid, balls-out honest assessment. She won’t give someone a “good” prognosis who doesn’t actually deserve it. In terms of an “excellent” prognosis, she may give out 1 or 2 of those a year. Or not.
A good evaluator, then, is thorough. If and when concerns arise during the evaluation process, and even if they’re more about the client’s well-being, and not so much about the evaluation itself, they should be explored. In other words, if a person seems to be dangerously depressed and not being treated for it, my evaluator isn’t going to just ignore that, do the evaluation, get paid, then say “goodbye.” She will take the appropriate steps to inform the person about his or her situation. Whatever is or isn’t present in any case, the evaluator’s job is to explore everything relevant to the substance use evaluation, including all physical and mental health conditions.
We’ll stop here for now, and then come back in part 2 to continue our examination of some of more important aspects of the substance use evaluation in a driver’s license restoration or clearance appeal.