A good and solid substance use evaluation (SUE) is required as the foundation fort a winning Michigan driver’s license restoration or clearance appeal case. If the evaluation does not qualify as accurate, favorable, and legally sufficient, then the appeal will be denied. In the real world, most people learn this when they receive a losing decision. In this article, we’re going to examine exactly what makes a substance use evaluation good enough to win, as well as what does NOT.
The substance use evaluation is a critical part of a Michigan driver’s license restoration case.We’ll do that by examining those 3 requirements: Accuracy, favorability, and legal sufficiency. Each of these aspects must be crystal clear within an evaluation BEFORE it gets filed with the Michigan Secretary of State’s Office of Hearings and Administrative Oversight (OHAO), the body that decides all restoration and clearance appeal cases. Unless the substance use evaluation filed in any case hits all 3 of these marks, it has no chance of winning.
There is, of course, a lot more to a license appeal than just the substance use evaluation. Even if a person files a completely accurate, favorable and legally sufficient SUE, that alone is not enough to win. However, the point we’re driving at is that the evaluation itself must essentially be “water-tight” for a case to have any chance of success as it moves forward. If it’s not, then nothing else matters, and there is no way to work around it to save an appeal.
Like every kind of legal case, driver’s license restoration and out-of-state clearance appeals are won or lost based upon the evidence. The law governing these cases sets out exactly what kind of evidence must be provided, and how it’s to be considered by the hearing officers who decide them. As I do in so many of these articles, let’s first set out the governing rule, and then break down, in plain English, what it means.
That rule, known as Rule 13, provides as follows:
The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following:
i. That the petitioner’s alcohol or substance abuse problems, if any, are under control and likely to remain under control.
ii. That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.
iii. That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act is a low or minimal risk.
iv. That the petitioner has the ability and motivation to drive safely and within the law.
v. Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.
What’s important to note for this discussion is that the rule begins by requiring that the hearing officer NOT grant the appeal (in other words, he or she must deny it) UNLESS the person proves his or her case by what is specified as “clear and convincing evidence.”
In the simple terms, evidence that is “clear and convincing” is about the equivalent of hitting a home run. It means that a person’s proofs must not just be strong, they must be overwhelmingly strong.
In order to file a license appeal, a person must include the documentary evidence specified by the Secretary of State’s Hearing Request Packet. Those required documents include the substance use evaluation, known as form SOS-258. This means that the evaluation, as evidence, must meet this “clear and convincing evidence” standard.
In other words, and as was previously stated, the evaluation must be overwhelmingly strong and water-tight. Remember, we’re not talking about any kind of generic evaluation here, but rather the SUE form issued by the Michigan Secretary of State.
As we noted at the outset, there are 3 key factors that make a substance use evaluation “good enough.” In order to support a winning license appeal, it must be accurate, favorable, and legally sufficient. We’ll look at each of them in turn, but first, a little background is in order.
Our firm guarantees to win every driver’s license restoration and clearance appeal case we take. We do that by exercising complete quality control over every step of the appeal process. One of the ways we do that is by ONLY using 2 principal evaluators. These are individuals with whom we have worked extensively and who have unmatched experience doing substance use evaluations specifically for Michigan Secretary of State driver’s license restoration and clearance appeals.
A sizable share of our clients hire us after having previously tried and lost a license appeal, either on their own, as a “do-it-yourself” case, or with some lawyer whose practice, unlike ours, is not concentrated in these cases. As a result, we get to review a lot of evaluations that were NOT good enough. This has has allowed us to observe and learn a lot from other people’s mistakes.
Over the course of decades, we have seen the same kinds of errors and omissions, again and again, in the the substance use evaluations filed by people who have lost. Failure to properly address the 3 areas we’re going to examine below accounts for the overwhelming majority of substance use evaluation-related denials. A screw up in one or more of these requirements is by far the most common evaluation shortcoming. Now, let’s look at them in turn:
1.) Accurate: In order to have any chance of supporting a winning case, an evaluation must be accurate. To be clear,”accurate,” as used in the context of a license appeal, means that absolutely nothing about a person’s conviction or substance use history, diagnosis, treatment, and prognosis gets left out. That means the evaluation must be comprehensive.
In the real world, what often happens is that a person will answer a question asked by the hearing officer and it will become apparent that something or other was not addressed in the substance use evaluation.
When that happens, it’s game over for the license appeal.
There are several omissions that are common and also problematic. A key one, for example, has to do with prior drug use:
Imagine that Sober Same went to Evaluator Eric. As the go over things, Eric learns that Sam was never really into drugs. He tried marijuana once or twice back in his high school days, and didn’t like it. Sam’s substance abuse problem was exclusively limited to alcohol. Accordingly, because Eric feels that marijuana was not a significant clinical part of Sam’s substance use history and subsequent recovery, he doesn’t mention it in the substance use evaluation.
At his hearing, Sam is asked if he’s ever tried any drugs, including marijuana. Without any reservation, he admits that he tried it once or twice many years ago, back in high school, but didn’t care for it and never used it again.
Right there, the hearing officer KNOWS that the substance use evaluation is not complete or comprehensive, and, therefore, not accurate.
Sober Sam, therefore, is going to lose this appeal. For him, that means better luck next time…
This is just one illustration of countless such situations that could play out this way. The point is that if the hearing officer discovers anything was left out of the evaluation, he or she knows it doesn’t qualify as truly “accurate.” As Michigan driver’s license restoration lawyers, we completely understand that cannot be allowed to happen. Therefor, we make sure it doesn’t.
2.) Favorable: There is a key section in the substance use evaluation entitled “prognosis,” and the form requires that one of 5 checkboxes within it be selected. Those are, from worst to better, “poor,” “fair,” “guarded,” “good,” and “excellent.” The prognosis is the evaluator’s best estimation of whether the person is likely to permanently remain alcohol (and drug) free.
In order to win a license appeal a person must not only prove that he or she has been completely abstinent from alcohol (and all other drugs, including recreational marijuana), but also that he or she is a safe bet to NEVER drink or get high again.
Most people will, of course, think “excellent” is the best possible prognosis, but it’s actually not, at least in the vast majority of cases.
Let’s start at the bottom. No matter what else, a license appeal CANNOT win if the evaluation has a prognosis of either “poor,” “guarded,” or “fair.” One of the 2 key issues in every license appeal is that a person must prove, by “clear and convincing evidence” (think of this as the equivalent of hitting a home run) that he or she is a safe bet to remain clean and sober.
It’s simply not a safe bet if the chances of that are “poor,” “fair,” or “guarded.” Those certainly fall far short of “good,” or “excellent.”
Generally speaking, a prognosis of “good” is best for most people.
Surprised?
How could “good” is usually better than “excellent?”
“Excellent” may apply to someone who has been sober for 20-plus years, but that same prognosis is a bit of a stretch (certainly so within the context of a driver’s license appeal) for someone who has only been alcohol-free for 3 or 4 years.
Indeed, clinically speaking, the chances of relapse drop significantly after 5 years. That, however, is not some hard-and-fast timeframe. Plenty of people go 7, 8, or more years and then drink or use drugs again.
What’s really important here is that, within the substance use evaluation, a prognosis of “good,” when clinically solid, is always good enough.
By contrast, when applied to someone without decades of sobriety, a prognosis of “excellent” tends to raise more questions than it answers.
The takeaway from this section is that the only favorable prognoses are either “good” or “excellent.” No matter what else is or isn’t present in a case, if the evaluation has a prognosis of “poor,” “guarded,” or “fair,” then the appeal will be denied. Generally speaking, “good” is best, and, absent unusual circumstance, actually better than “excellent.”
3.) Legally sufficient: There are plenty of other things that must be done correctly in order for a substance use evaluation to support a winning appeal. Beyond not being accurate, or not having a favorable prognosis (or having one that’s questionably “excellent”), there is no shortage of potential pitfalls that can render an evaluation “insufficient.”
“Insufficient,” as we use it here, means an evaluation simply isn’t good enough. When that happens, the hearing officer has the legal grounds to deny an appeal (and indeed, should do so).
Not being good enough can include all sorts of things, including a dilute urine screen, an undisclosed conviction (that would also be an issue of accuracy), or the failure to thoroughly explain any kind of physical or mental health diagnosis, or medication used therefore.
To be legally sufficient, the evaluator must explain the reasons for the prognosis and any continuum of care recommendation(s) he or she makes.
In fact, the continuum of care section of the evaluation is another area where we see a lot of problems. To do is properly, the evaluator must really know how to do an evaluation for a Michigan Secretary of State license appeal.
Often, an evaluator will think that he or she is pointing out that the person knows they can get into counseling or attend some support group, if needed, at some point in the future, even if he or she is doing fine right now without it
However, when that’s indicated, the hearing officers read it as if the person should be going now. Here’s how that often plays out:
Assume that Recovery Rhonda has been sober for 7 years. Early on, she attended both individual counseling and AA. As time passed, she became confident and strong enough in her sobriety to not have to go to any more counseling sessions or AA meetings.
Within the evaluation, Cautious Carla notes that Rhonda knows that, if she ever has any urges to drink, she can just go to an AA meeting. Thinking that she’s sending that very message, she checks the “community support group” recommendation.
Because she’s not currently attending AA, that just killed Rhonda’s chances of winning her license appeal. To the state, this means that Carla thinks Rhonda needs to be in community support to stay sober, even though that’s not what was meant.
It would be impossible to list everything that makes a substance abuse evaluation good, or the many things that can cause it to not be good enough. In the broader sense, that’s our job, as Michigan driver’s license restoration attorneys. Part of the reason we can guarantee to win every driver’s license restoration and clearance appeal case we take is that we carefully review every evaluation before it’s filed, and we compare it to the information we have about the client. If we find something “off,” then we have it corrected.
When all is said and done, the hearing officer MUST be able to rely upon the evaluation as both complete and clinically accurate. This is why our firm mandates that we meet (this can be done virtually) with every client before he or she ever goes to the evaluator. We do this not only to prepare the client of the the evaluation, but to also complete a form of our own that we send to the evaluator with all the details we know are important. By doing so, we ensure that we provide the kind of complete information needed to produce an accurate substance use evaluation.
This also gives us the ability to carefully review the substance use evaluation before it’s filed to make sure that it is, in fact, accurate, favorable, and legally sufficient. Anything less is simply means the case will be denied. We’re hired to win these cases, and nothing less.
If you’re looking for a lawyer to win back your license, or to remove a Michigan “hold” on your driving record so that you can get a license in another state, be a wise consumer. Read around, and pay attention to how different lawyers break down the license appeal process, and how they explain their various approaches to it.
This blog is a great place to start. To-date, I have written and published over 690 articles in the driver’s license restoration section. A new, original article is added every week, and the entire archive is fully searchable. With a little effort, the reader can find the answer to any question he or she could ever have about license appeals. Don’t take my word for it, though – check for yourself.
When you’ve done enough reading, start calling around and do some comparison shopping. You can learn a lot by speaking with a live person, and that’s exactly what you’ll get when you call our office. My team and I are very friendly people who will be glad to answer your questions and explain things. We’ll even be happy to compare notes with anything some other lawyer has told you.
We can handle your case no matter where you live, so make sure you give us a ring as you explore your options.
Our consultations are free and our cases are handled on a “flat-fee” basis with upfront fees!