Oakland County Driver’s License Restoration Appeals Lawyer Jeffrey Randa Home
Michigan Attorneys for Criminal, DUI,
and Driver's License Restoration Cases.
The Substance Use Evaluation
It is a fact that regaining your license is much harder than ever getting it the first time. The work involved in restoring a driver's license is complicated and very time consuming. There are what I often call "a million little rules" that need to be navigated in the license restoration process. In this section, we're going to examine the Substance Use Evaluation, or SUE. Note that it is often - but mistakenly - called a "Substance Abuse Evaluation."
Under Michigan law, anyone who has to file a formal driver's license restoration or clearance appeal after multiple DUI convictions is considered a "habitual alcohol offender." Part of the legal penalty for that is the revocation of his or her driver's license. That's undoubtedly what brought the reader here.
In addition - and this is critically important - every "habitual alcohol offender" is presumed, by law, to have some kind of alcohol problem. To be clear, this doesn't mean that he or she is necessarily some kind of raging alcoholic, or wakes up with the shakes. Instead, it means that the person has, by virtue of 2 or more DUI convictions, demonstrated themselves to be a risk when it comes to drinking, then driving.
As we'll see, the goal of the license appeal process is to make sure that the only people who get back on the road are those who don't pose any such risk. The Secretary of State knows that, no matter what, people who do NOT drink are exactly zero risk to drive drunk. The whole point of the Substance Use Evaluation is to find out if someone has really quit drinking, is drug-free (including, and especially, from recreational marijuana), and is otherwise a safe bet to never drink or get high again.
Anyone filing a license appeal after multiple DUI convictions is called a "petitioner." He or she must request a hearing through the Michigan Secretary of State's Office of Hearings and Administrative Oversight (OHAO). This is done by filing, along with other required documents, a current (meaning less than 90 days-old) substance use evaluation. The SUE is, in reality, the very foundation of a driver's license restoration or clearance appeal.
The hearing itself is conducted before a hearing officer, who is a licensed Michigan attorney, and technically called an "Administrative Law Examiner." In order to win a license appeal case, a person must prove several very specific things, by what the driver's license laws specify as "clear and convincing evidence." At its most basic, "clear and convincing evidence" is the equivalent of hitting a home run. Put another way, it means that, to win, you have to really crush it.
For this to make sense, we'll first set out the main rule (Rule 13), and then break down, in plain English, what it really means below:
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:
That the petitioner's alcohol or substance abuse problems, if any, are under control and likely to remain under control.
That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.
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.
That the petitioner has the ability and motivation to drive safely and within the law.
Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.
Note how the rule begins by stating that "The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence..."
What this means is that, instead of starting out neutral, and then making a decision, the hearing officer begins with "NO" as the answer to every license appeal. He or she can only change that to a favorable, winning decision if the person proves certain things (we'll get to them shortly) by what is defined as "clear and convincing evidence."
For all the complicated language, there are 2 key things that must be proven in every case:
First, that his or her legally presumed alcohol (and/or substance abuse) problem is "under control." In simple terms, that means he or she must demonstrate complete abstinence from alcohol and all other substances for a legally sufficient period of time.
The necessary amount will vary depending on the persons' background: Someone with 2 DUI's will need a lot less clean time than someone with a long drinking history and 5, 6 or more DUI's. In our office, we generally require a person to have at least 18 months of clean time before we'll move forward with a case.
Second, that his or her legally presumed alcohol (and/or substance abuse) problem is "likely to remain under control." This is really where the substance use evaluation takes center-stage.
An alcohol problem is considered "likely to remain under control" when a person can prove that he or she has both the ability and commitment to remain alcohol (and drug-free) for life. In other words, he or she must show themselves to be a safe bet to never consume alcohol or use drugs again.
The substance use evaluation is a state form that must be completed by a licensed substance abuse therapist. Our firm has 2 main evaluators that we have used for many years. We work closely with them (we typically have daily contact with them) to make sure the form is completed in a way that is acceptable to each of the 9 hearing officers who decide these cases.
The substance use evaluation form is very specific about what must be included. It must be signed both by the therapist/evaluator, and the petitioner as well, as a way to certify its accuracy.
Letters of support are also required to be filed with the request for hearing, but they are the subject of our next section.
Thus, we begin with the substance use evaluation. Because of the importance of that evaluation form, we always meet with our clients before they see the evaluator, specifically to prepare them to have the SUE completed. As noted earlier, the substance use evaluation is the very foundation upon which the whole case is built. If you are not properly prepared for the evaluation, then the rest of the process will be seriously compromised.
You cannot build a winning case on a losing substance use evaluation.
It is at this point that things get really technical and difficult. Remember, the Secretary of State is not allowed to grant a license unless the petitioner proves, by "clear and convincing evidence," the issues outlined above, as well as any others in the rule that apply. That means that if you miss one little thing in your documents, including your substance use evaluation, or your testimony, or you even have just 2 inconsistent dates in your paperwork, the hearing officer is essentially legally required to deny your appeal.
While that may seem harsh, it really is the hearing officer's job to look for those little mistakes.
A good way to do this is to imagine that there is a checklist, and for each thing he or she asks about, the hearing officer must check off either a "yes" or "no" box in answer to whether your evidence or proofs were good enough to meet that "clear and convincing" standard.
If, at the end of your hearing, there are any checked "no" (or, to put it another way, if they are not all checked "yes") then your appeal must be denied. That about sums up the job of the hearing officer and the burden you must meet to win your appeal.
Here, I should point out that our firm GUARANTEES TO WIN every driver's license restoration and clearance appeal case we take. In our decades of handling and winning these cases, my team and I usually hear from people in 1 of 2 distinct categories:
The plain fact is that it is difficult, at best, to get your Michigan license restored, and the Secretary of State knows this. Winning your license back involves some pretty technical stuff. Getting everything right and being able to guarantee a win requires t a lot of experience - like my team and I have.1. Those who have tried to get their license back with a "do-it-yourself" license appeal, or who hired some lawyer who claimed to "do" these kinds of cases, and then lost. They now realize the complexity of the situation, and are looking for someone who really knows this stuff.2. Those who have never tried before and wonder if they even need an attorney. People in the first group are generally easier to deal with. They understand how difficult the process is and are under no illusions about the need for an experienced and good Michigan driver's license restoration lawyer.
The system is, of course, designed to be this way. The hearing officers expect people to come in and try and BS their way through the process. They expect to be lied to... .
If you lose, you have to wait a year to file again, which means another 12 months relying upon other people to get you around.
For those who lose after trying on their own, or with some lawyer not experienced enough in these matters to guarantee his or her work, there is also a risk of making things worse the next time you try. In second and subsequent hearings, the Secretary of State reviews the documents (including the substance use evaluation)filed in and findings of all prior hearings. This means that above and beyond the issues a petitioner must prove, a second-timer must also show what they did to fix whatever was wrong the first time they tried. Depending on the problem, that can set them back either a little, or a lot.
Thus, it pays to get everything right the first time because having to wait for at least another full year and then coming back with a handicap is no fun.
Understanding the process and the importance of the substance use evaluation from the very beginning is the only way to start the process correctly. Let's look at an example:
One of the very first things the evaluator must complete in the SUE form is the petitioner's lifetime conviction history. The state requires the dates of all prior convictions, and the petitioner's BAC (Blood Alcohol Content) at the time of his or her arrest.
What most people don't know is that the hearing officer has the information about the BAC results in front of them at the time of the hearing. If you get those BAC numbers wrong, or, if you didn't remember them and didn't explain that properly at the evaluation, but guessed, instead, the hearing officer will be wondering if you tried to scam the evaluator by giving a lower, or otherwise inaccurate BAC number.
Even if it was an honest mistake, the hearing officer can only guess at whether or not the evaluating therapist would have seen things differently if you had given the correct BAC number, or properly explain that you didn't recall one or more of them accurately.
Knowing what to do when a person can't recall one or more of their BAC levels can be the difference between winning and losing. Handling this the right way at the time of the evaluation won't cause the kind of mistake that is often fatal to an appeal. What's more, this level of attention to detail applies to every line in the evaluation.
Even if there is just a small error, the hearing officer cannot be certain that the other remaining information in the substance use evaluation is accurate, complete, or otherwise reliable. When that happens, he or she will consider the evaluation as a whole not sound enough to meet the "clear and convincing evidence" standard.
Think back to our "checklist" example? Now, remember that the Secretary of State is required to deny the petition unless the petitioner meets that "clear and convincing evidence" burden of proof. It may seem nit-picky, but the hearing office is supposed to be on the lookout for that one little mistake in order to deny the petition.
When our firm takes a license restoration or clearance appeal case, we spend time with the client at our first meeting (it can be virtual or in-person) just to prepare him or her for the substance use evaluation. We go over every facet of the evaluation process, and the state's form line by line. As part of that, we complete our own form that is provided to the evaluator to make sure that everything relevant gets included in the final product.
Our clients leave that first meeting fully prepared to undergo their substance use evaluation. We make sure we go over everything in detail. We truly believe that anything less is just plain wrong and a recipe for failure, If you haven't been helped and prepared every step of the way through your hearing, then you may just be paying for someone to watch you lose.
Once the evaluation has been completed, the evaluator will send a copy to us for review. One of our primary jobs is to look for mistakes before we file anything. We have had plenty of cases where client's prior appeal (done, of course, without our help) was denied the first time because something was missed or listed inaccurately (even by typo) in the substance use evaluation.
That won't happen when our firm is in control.
Again, while this may sound harsh, it is the job of the hearing officer to deny the petition unless the petitioner proves the issues explain above by "clear and convincing evidence." It is not part of his or role to present evidence for the petitioner, to figure out why there are any inconsistencies, or to fix any errors in his or her case. The petitioner is responsible for submitting documentation that meets the clear and convincing evidence standard. In the context of a license appeal, clear means clear, and not at all muddied by contradictions, inaccuracies or mistakes.
If there is an error, the fault lies with petitioner, and there goes his or her chance for a license until another year goes by.
The Secretary of State doesn't take responsibility for errors in your documents, like the substance use evaluation - it just acts on them. It's your job to make sure everything you submit is accurate. When we're your lawyers, then it is our job to make sure that's done, and we will - guaranteed.
