A good and solid substance use evaluation (SUE) is required as the foundation fort a winning Michigan driver\u2019s 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\u2019re going to examine exactly what makes a substance use evaluation good enough to win, as well as what does NOT.<\/p>\n
The substance use evaluation is a critical part of a Michigan driver’s license restoration case.We\u2019ll 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\u2019s 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.<\/p>\n
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\u2019re driving at is that the evaluation itself must essentially be \u201cwater-tight\u201d for a case to have any chance of success as it moves forward. If it\u2019s not, then nothing else matters, and there is no way to work around it to save an appeal.<\/p>\n
Like every kind of legal case, driver\u2019s 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\u2019s to be considered by the hearing officers who decide them. As I do in so many of these articles, let\u2019s first set out the governing rule, and then break down, in plain English, what it means.<\/p>\n
That rule, known as Rule 13, provides as follows:<\/p>\n
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:<\/p>\n
i. That the petitioner\u2019s alcohol or substance abuse problems, if any, are under control and likely to remain under control.<\/strong><\/p>\n ii. That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.<\/strong><\/p>\n 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.<\/strong><\/p>\n iv. That the petitioner has the ability and motivation to drive safely and within the law.<\/strong><\/p>\n v. Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.<\/strong><\/p>\n What\u2019s 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 \u201cclear and convincing evidence.\u201d<\/p>\n In the simple terms, evidence that is \u201cclear and convincing\u201d is about the equivalent of hitting a home run. It means that a person\u2019s proofs must not just be strong, they must be overwhelmingly strong.<\/p>\n In order to file a license appeal, a person must include the documentary evidence specified by the Secretary of State\u2019s 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 \u201cclear and convincing evidence\u201d standard.<\/p>\n In other words, and as was previously stated, the evaluation must be overwhelmingly strong and water-tight. Remember, we\u2019re not talking about any kind of generic evaluation here, but rather the SUE form issued by the Michigan Secretary of State.<\/p>\n As we noted at the outset, there are 3 key factors that make a substance use evaluation \u201cgood enough.\u201d In order to support a winning license appeal, it must be accurate, favorable, and legally sufficient. We\u2019ll look at each of them in turn, but first, a little background is in order.<\/p>\n Our firm guarantees to win every driver\u2019s 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\u2019s license restoration and clearance appeals.<\/p>\n A sizable share of our clients hire us after having previously tried and lost a license appeal, either on their own, as a \u201cdo-it-yourself\u201d 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\u2019s mistakes.<\/p>\n 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\u2019re 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\u2019s look at them in turn:<\/p>\n 1.) Accurate:<\/strong> In order to have any chance of supporting a winning case, an evaluation must be accurate. To be clear,\u201daccurate,\u201d as used in the context of a license appeal, means that absolutely nothing about a person\u2019s conviction or substance use history, diagnosis, treatment, and prognosis gets left out. That means the evaluation must be comprehensive.<\/p>\n 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.<\/p>\n When that happens, it\u2019s game over for the license appeal.<\/p>\n There are several omissions that are common and also problematic. A key one, for example, has to do with prior drug use:<\/p>\n 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\u2019t like it. Sam\u2019s substance abuse problem was exclusively limited to alcohol. Accordingly, because Eric feels that marijuana was not a significant clinical part of Sam\u2019s substance use history and subsequent recovery, he doesn\u2019t mention it in the substance use evaluation.<\/p>\n At his hearing, Sam is asked if he\u2019s 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\u2019t care for it and never used it again.<\/p>\n Right there, the hearing officer KNOWS that the substance use evaluation is not complete or comprehensive, and, therefore, not accurate.<\/p>\n Sober Sam, therefore, is going to lose this appeal. For him, that means better luck next time\u2026<\/p>\n 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\u2019t qualify as truly \u201caccurate.\u201d As Michigan driver\u2019s license restoration lawyers, we completely understand that cannot be allowed to happen. Therefor, we make sure it doesn\u2019t.<\/p>\n 2.) Favorable:<\/strong> There is a key section in the substance use evaluation entitled \u201cprognosis,\u201d and the form requires that one of 5 checkboxes within it be selected. Those are, from worst to better, \u201cpoor,\u201d \u201cfair,\u201d \u201cguarded,\u201d \u201cgood,\u201d and \u201cexcellent.\u201d The prognosis is the evaluator\u2019s best estimation of whether the person is likely to permanently remain alcohol (and drug) free.<\/p>\n 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.<\/p>\n Most people will, of course, think \u201cexcellent\u201d is the best possible prognosis, but it\u2019s actually not, at least in the vast majority of cases.<\/p>\n Let\u2019s start at the bottom. No matter what else, a license appeal CANNOT win if the evaluation has a prognosis of either \u201cpoor,\u201d \u201cguarded,\u201d or \u201cfair.\u201d One of the 2 key issues in every license appeal is that a person must prove, by \u201cclear and convincing evidence\u201d (think of this as the equivalent of hitting a home run) that he or she is a safe bet to remain clean and sober.<\/p>\n It\u2019s simply not a safe bet if the chances of that are \u201cpoor,\u201d \u201cfair,\u201d or \u201cguarded.\u201d Those certainly fall far short of \u201cgood,\u201d or \u201cexcellent.\u201d<\/p>\n Generally speaking, a prognosis of \u201cgood\u201d is best for most people.<\/p>\n Surprised?<\/p>\n How could \u201cgood\u201d is usually better than \u201cexcellent?\u201d<\/p>\n \u201cExcellent\u201d 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\u2019s license appeal) for someone who has only been alcohol-free for 3 or 4 years.<\/p>\n 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.<\/p>\n What\u2019s really important here is that, within the substance use evaluation, a prognosis of \u201cgood,\u201d when clinically solid, is always good enough.<\/p>\n By contrast, when applied to someone without decades of sobriety, a prognosis of \u201cexcellent\u201d tends to raise more questions than it answers.<\/p>\n The takeaway from this section is that the only favorable prognoses are either \u201cgood\u201d or \u201cexcellent.\u201d No matter what else is or isn\u2019t present in a case, if the evaluation has a prognosis of \u201cpoor,\u201d \u201cguarded,\u201d or \u201cfair,\u201d then the appeal will be denied. Generally speaking, \u201cgood\u201d is best, and, absent unusual circumstance, actually better than \u201cexcellent.\u201d<\/p>\n 3.) Legally sufficient:<\/strong> 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\u2019s questionably \u201cexcellent\u201d), there is no shortage of potential pitfalls that can render an evaluation \u201cinsufficient.\u201d<\/p>\n \u201cInsufficient,\u201d as we use it here, means an evaluation simply isn\u2019t good enough. When that happens, the hearing officer has the legal grounds to deny an appeal (and indeed, should do so).<\/p>\n 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.<\/p>\n To be legally sufficient, the evaluator must explain the reasons for the prognosis and any continuum of care recommendation(s) he or she makes.<\/p>\n 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.<\/p>\n 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<\/p>\n However, when that\u2019s indicated, the hearing officers read it as if the person should be going now. Here\u2019s how that often plays out:<\/p>\n 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.<\/p>\n 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\u2019s sending that very message, she checks the \u201ccommunity support group\u201d recommendation.<\/p>\n Because she\u2019s not currently attending AA, that just killed Rhonda\u2019s 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\u2019s not what was meant.<\/p>\n 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\u2019s our job, as Michigan driver\u2019s license restoration attorneys. Part of the reason we can guarantee to win every driver\u2019s license restoration and clearance appeal case we take is that we carefully review every evaluation before it\u2019s filed, and we compare it to the information we have about the client. If we find something \u201coff,\u201d then we have it corrected.<\/p>\n 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.<\/p>\n This also gives us the ability to carefully review the substance use evaluation before it\u2019s 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\u2019re hired to win these cases, and nothing less.<\/p>\n If you\u2019re looking for a lawyer to win back your license, or to remove a Michigan \u201chold\u201d 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.<\/p>\n This blog is a great place to start. To-date, I have written and published over 690 articles in the driver\u2019s 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\u2019t take my word for it, though \u2013 check for yourself.<\/p>\n When you\u2019ve done enough reading, start calling around and do some comparison shopping. You can learn a lot by speaking with a live person, and that\u2019s exactly what you\u2019ll 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\u2019ll even be happy to compare notes with anything some other lawyer has told you.<\/p>\n