SUBSTANCE USE EVALUATIONS: REVIEWING THE PROCESS
By Michael Brock
My daughter recently asked me what steps a person would go through to get their license back. It seemed she needed the information for a project she is working on. I sent her this review of the current process. The information is all included in previous articles for the Legal News which are available online and at my website, but this is a boiled down version of my roll:
First, the client finds me on line, in my Downriver Trader ad, or is referred by an attorney, judge or former client. To be eligible for a hearing with the Secretary of State, he or she must have at least a year abstinent from alcohol or any other drugs of abuse. This can sometimes be a fuzzy area from people who are taking opiates, benzodiazepines or marijuana by prescription, and while there are legitimate purposes for these medications it certainly looks better if they are not being used by people with a history of dependence to substances. Many addicts substitute one drug for another without achieving any real recovery.
When the client comes in, we sit down and go through the information the state requires, starting with demographics, then the dates of their offenses for anything related to substance abuse. That would include anything from DUI to drug trafficking, to a conviction for Domestic Violence where substance use was involved. It also includes juvenile offenses like Minor in Possession of Alcohol or Marijuana. Sometimes clients will lie about these offenses, or omit them because they think they’ve been expunged, but anything they omit will usually be a reason for denial. A hearing officer recently asked me if my prognosis would change if I knew about two ancient offenses that for some reason were not on the client’s record. The answer was no, but I was frankly surprised he asked.
Next we go through their lifetime treatment and support group history. If they are active in AA they can usually tell a convincing story of recovery, but if they are not they can’t fake it. Hearing Officers know who is really in AA and who is just getting a slip signed. Still, people recover in different ways. If they have a strong church or family connection, or if they got more out of treatment than AA, we stress that. Generally, the more treatment and self-help they have done the better it looks and the better their chances.
Where the State form asks for test results, I give clients the Michigan Substance Abuse Screening Test, which both provides a test result and also tells me how clients answer questions about their history of abuse. Some people answer very candidly and some are very defensive. I tell them that, “I wasn’t that bad” is not a winnable argument. Better to fall on your sword, confess your sins and later in the eval (under the prognosis section), tell them how you’re born again. Some listen, some don’t.
I then go through the diagnosis, relating that diagnosis to the above test and enumerating the symptoms they have and those they don’t have. Key symptoms indicating Substance Dependence are increased tolerance, loss of control, withdrawal and ignored consequences of substance use. I give diagnoses for alcohol and drug dependence separately, and include a mental health diagnosis if there is one. All conditions have to be in sustained full remission.
Next is the drug screen. The test I prove through Medtox Laboratories includes the integrity variables of Creatinine, Nitrates and PH. If the client drinks a lot of water his urine may not be concentrated enough to provide a valid sample. If the creatinine is below 20, it is not considered valid and will have to be redone. If the client waits two months to redo the test, it looks suspicious and this does not help their chances of getting their license back. Again, it is better to test clean than have prescription meds like opiates or benzodiazepines show up.
The State then asks for periods of abstinence and reason for relapse. They should at least have been sober during their probationary period for their offenses. And, especially if they have an extensive history of relapse, clients need to be able to make an argument that this time they have seen the light and there will be no more relapses. Generally, I have confidence that a person will remain abstinent of they have established what they think is a worthwhile life; if they feel like they are doing themselves a favor by staying sober, not denying themselves the wonderful experience of alcohol and/or other drugs.
The prognosis section offers the options of, excellent, good, fair, guarded, or poor, and the reason for the particular diagnosis. The client must have a good or excellent prognosis to succeed. I tell them this is their chance to tell their story. Anyone making a valid recovery should be able to enumerate improvements in their lives. I tell them not to complain of the hardships; hearing officers know that and they don’t care. Their job is to keep the streets safe. Talk about how you relationships, job performance, finances, self-esteem, physical and mental condition etc., have all improved. Talk about your sober lifestyle and the activities you have replaced drinking with. This is what I mean about a born again story. If the client can tell a convincing story of recovery he or she can get a license without being in AA. Many can and do.
Finally, there is the recommendation for ongoing treatment or self-help. If the client is doing what he needs to stay sober and drug free, I always recommend the client keep doing what is working for him. But this should be more than a change of thinking; there should also be a change in behavior, and activities that reflect a different mindset; being back in school, working out at the gym, or other sober interests and pursuits reflect better use of time and energy. He or she should also have a new group of friends and associates who encourage their sober lifestyle and very limited or no contact with people they used to drink with. Generally, addicts can’t hang around the same friends without eventually relapsing into active use. However, if the hearing officer thinks the client needs to do more than they are proactively to remain abstinent, that is a reason to deny the appeal.
Clients must now also fill out the eight page request for hearing form and obtain three to six letters of support. They must be signed, dated, notarized and have contact information and the last date of use of all drugs. Essentially, clients are being asked the same information four times, my eval, the request for hearing, support letters, and at the hearing itself. All their information has to line up and this is harder than it sounds. Recovered alcoholics usually know their last drink date, but not the last time they used marijuana. If they are not sure, they have to take a good guess and remember it.
Some people can do OK at the hearing by themselves, others really need representation. Actually, the more complicated the process becomes, the more necessary a lawyer becomes. Good lawyers go over the evidence with a fine tooth comb, and if I’ve made a mistake, they bring it to my attention. One lawyer apologized to me recently for pointing out a mistake. There’s not need to apologize for doing your job. Thank you for improving the quality of my work. However, sometimes the lawyer has a question about my using word format instead of PDF, or my choice of diagnosis. If you have a question, please ask, but I’ll stay with my choice if I think it’s right.
If the client would like an attorney, but doesn’t have one, I’ll make a referral. If they are successful with the appeal, they typically get a restricted license with a breathalyzer for a year. Then, they typically have to go through the entire process again in a year to get their full license back. This is not a slam dunk, and can be complicated by equipment failures or blowing positive after eating pizza. Clients should be advised to go to a police station and get an accurate test if they experience a false positive for any reason. If they don’t address the matter in a timely fashion, the state may pull the restricted license and they will have to start over from scratch.
Despite successfully going through all this, some people relapse and pick up another DUI. Hearing officers have a difficult job and most of them do it well. The streets are safer because of this process, though some people argue it isn’t technically due process. Hearing officers are judges who don’t have to stand for election, so they don’t have to worry about alienating lawyers. This seems to be necessary for public safety. If my clients are ready, I want them to get their license back, but not all of them are. My job is to help the client provide evidence as clearly as possible so that the hearing officer can make a fair and impartial decision that is everyone’s best interests.