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 time consuming and very particular. There are a million little rules that need to be navigated in the license restoration process. Accordingly, I have divided my discussion of this process into several consecutive parts.

In this first part we'll deal with the request for a hearing and the substance use evaluation.

A person trying to win back their license is called a petitioner, and must request a hearing through the Michigan Secretary of State's Administrative Hearing Section (now the AHS - but formerly called the Driver Assessment and Appeal Division, or DAAD). This is done by filing, amongst other things, a substance use evaluation (often misstated as the "substance abuse evaluation") with the AHS. That hearing is conducted in a hearing room, before a hearing officer, who is also a licensed Michigan attorney. At the hearing, the petitioner must prove several very specific things, by what is called "clear and convincing evidence." The full text of the applicable rule (Rule 13) is reprinted here:

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:

  1. That the petitioner's alcohol or substance abuse problems, if any, are under control and likely to remain under control.

  2. That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.

  3. 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.

  4. That the petitioner has the ability and motivation to drive safely and within the law.

  5. Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.

Some of these subsection are more important than others. In many cases, proving one proves another, while in other cases, separate proofs are necessary. I determine which subsections are the most important on a case-by-case basis by evaluating your prior conviction history and your individual path to recovery.

The substance use evaluation form is taken by the person seeking a license, or petitioner, to a licensed substance abuse therapist and is completed by the therapist after certain written substance abuse tests have been taken and scored and an interview has been conducted.

If you're my client, I will refer you to an affordable, top notch local evaluator to have this completed properly. Ironically, the clinic I use charges less than most others, while producing an evaluation of the best quality.

The form is very specific about what must be included and it must be signed both by the licensed therapist/evaluator, and the petitioner as well.

Letters of support are to be included with the request for hearing, but they are the subject of our next section, so we'll leave that subject for later.

Thus, we begin with the substance use evaluation. Because of the importance of that evaluation form, I always meet with my clients before they even think of getting it done. 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 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, and any others in the rule that apply. That means that if you miss one little thing in your documents or testimony, or have even two conflicting dates in your paperwork, the hearing officer is almost legally required to deny your appeal.

While that may seem almost mean-spirited, it is really the job, under the law, of the hearing officer, to look for those little mistakes. Imagine that they are sitting there with a checklist, and for each thing they review or ask about, they 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 have in filing your appeal.

In my years of handling these cases, I am usually called by people in one of two categories:

1. Those who have tried to get their license back without an attorney the first time, and have 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. 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. Their concern is limited only to finding that attorney, like me. The first-timers tend to think that merely going in and showing that they haven't been drinking since their last drunk driving conviction is what's important. Nothing could be farther from the truth.

The plain fact is that it is difficult, at best, to get your Michigan license restored, and even the AHS. knows this. In its Appeals Practice Manual, the Secretary of State notes that;

"The Department is aware that there is a perception that the agency "never returns a license" in habitual violator appeals..."

By now you may be getting the idea that winning your license back can be a difficult task and involves not only some pretty technical stuff, but a lot of experience as well. If you've tried before, then you really know how true that is.

I have inserted a link to the AHS/DAAD practice manual. Note that the latest update is from 2005. You can find it by clicking here.

I include it so that you don't have to take my word for how involved this stuff is. And if you're the type who wants to try it yourself the first time, then this manual contains pretty much everything you need to know about the law and rules, although it obviously cannot address the issues of importance to any particular hearing officer. 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 that try it on their own and lose, or try with a lawyer not experienced enough in these matters and lose, they have actually made matters worse. Remember, if you lose your appeal, you cannot have another hearing for one full year. In second and subsequent hearings, the Secretary of State reviews the records and findings of all prior hearings. This means that above and beyond the issues all petitioners must prove, second-time petitioners must also show what they did to fix whatever was wrong the first time they tried, and depending on the problem, that can set them back either a little or a lot from the starting line. Thus, it pays to get it right the first time, because waiting another year and coming back farther behind than the last time is no fun.

Understanding the process and the importance of the substance use evaluation at the very beginning is the only way to start the process correctly. Let's look at an example. I don't use this as a scare tactic, but one of the very first things for the evaluator to complete in the substance use evaluation 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 arrest.

What you aren't told is that the hearing officer has that information about the BAC in front of them at the time of the hearing. Now, if you got those BAC numbers wrong, or, if you didn't know them and didn't handle that aspect properly at the evaluation, the hearing officer will be wondering if you tried to scam the evaluator about your alcohol use/abuse 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.

Moreover, in such a case as this, the hearing officer may very well wonder if any of the other remaining information in the substance use evaluation is unreliable, and then consider the whole thing not accurate enough to qualify as "clear and convincing evidence." You may think that's crazy, but that's the way it works, and anyone who's been down this road before and lost knows this all too well.

In any event, because the substance use evaluation has been found to be questionable, the petitioner will lose, having failed to meet the standard of proving their case by clear and convincing evidence. Remember, my "checklist" example? The Secretary of State is required to deny the petition unless the petitioner meets that burden of proof of clear and convincing evidence. It may seem nit-picky, but they are looking for that one little mistake in order to deny the petition.

Knowing how to handle this aspect of the substance use evaluation in a case where a person doesn't know one or more, or even any of their BAC levels is the difference from submitting one that's a loser, or a winner. Handling this the right way at the time of the evaluation leaves the evaluator unencumbered by misinformation, which is often fatal to an appeal. What's important is that you understand that this level of attention to and understanding of detail goes for every line in the evaluation.

When I handle a case, I meet with my client for a good 3 hours at our first meeting just to prepare them for the evaluation. I go over the substance use evaluation process and the form line by line. My client leaves the office fully prepared to undergo their evaluation. I leave no stone unturned and go over the testing procedures you will undergo in detail. I truly believe that anything less is just plain wrong and a recipe for failure. Remember, hiring a lawyer for this means a lot more than paying for some mouthpiece just to sit next to you at the hearing. If you haven't been helped and prepared every step of the way to that hearing, then you may just be paying for someone to watch you lose, anyway. Above everything else, I guarantee to win every case I take.

Once the evaluation has been completed, the evaluator will send a copy to both you and to me. Once I have it, I will carefully review it. One of my many jobs in these cases is to look for mistakes before we file anything. I have had plenty of cases where my client's prior appeal (done, of course, without my help) was denied the first time because something was missed (even a typo) in the evaluation.  That won't happen when I'm in control.

Again, while this may sound harsh, it is the job of the hearing officer to deny the petition unless the petitioner proves by clear and convincing evidence the four issues noted above. To put it another way, it is not the job of the hearing officer to present evidence for the petitioner, or to figure out contradictions, or to fix errors. The petitioner is responsible for submitting documentation that meets the clear and convincing evidence standard. And rest assured, clear means clear, not slightly muddied by mistakes, contradictions, other unclear information. If there is an error or typo, the fault lies with you for submitting it, and there goes your chance for a license until another year goes by.

I liken this process to submitting a tax return. If your W-2's show you made $40,000.00 last year, but you accidentally fill in $400,000.00, the IRS won't be sending you a refund; You'll be getting a bill, and a big one at that. The IRS, like the Secretary of State, looks only at the information you provide, and cross-references it with what is officially on file. They don't take responsibility for errors in your documents, they just act on them. It is your job to make sure everything you submit is accurate.

When I am your attorney, then it is my job to help and make sure you do that, and I will - guaranteed.

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