EXPERT WITNESS: Rules are rules

 By Michael G. Brock 

 
Recently, when discussing a driver’s license appeal case with Attorney Matt Zick, he told me that when he goes to a DAAD hearing with a client it is his custom, at the end of the hearing, to bring out and read a copy of R 257.313, Standards for issuance of a license. Rule 13 (1) (a) requires the petitioner to prove all of the following [listed below] by clear and convincing evidence. 
He then proceeds to go through the evaluation to show where and how each point has been made. He states this is because the information the law requires is there, but it is in mental health speak, rather than legal terminology, and is not organized the way it is in the law. Hearing officers are lawyers and he feels that he can make the case better by showing how each of the five factors has been addressed in the evaluation and by and the client at the hearing.
 
(i) Petitioner’s alcohol or substance abuse problems, if any are under control; 
This factor is covered in the diagnosis and includes information from the Michigan Alcohol Screening Test regarding tolerance, frequency of use, severity of abuse/dependence and length of abstinence. The client’s length of sobriety/abstinence from alcohol, illicit drugs, and/or abuse of prescribed medications, if more than one year, constitutes a diagnosis of substance dependence or abuse in sustained full remission. Crucial to this diagnosis is that all past and present substances abused are addressed, and also any mental health diagnosis that may affect the client’s ability to remain abstinent and drive responsibly. If any controlled substances are being prescribed by the client’s physician, the hearing officer will generally want an opinion from the medical doctor asserting that the client’s use of this medication will not result in abuse, and will not impair his ability to drive. This can be a sticky wicket, however. Hearing officers are understandably cautious about the use of controlled substances by persons who have a history of substance abuse, and driving while under the influence. Sometimes these cases wind up in circuit court. 
 
(ii) The risk of Petitioner repeating his past abusive behavior is a low or minimal risk;
This information is covered by the prognosis, including the reasons the client is a (excellent/good/fair/guarded/poor) risk for relapse. If the client is active in AA and can support that the goes to meetings, works the steps, participates in activities, knows the prayers, speaks the jargon; and, in general, says and does the things you would expect a person active in AA to do, then the job of showing a relapse is unlikely is made easier. However, if he isn’t active in AA – and many abstinent former substance abusers are not – proof by way of a lifestyle change is necessary. When I am doing an evaluation I ask the client for a narrative at this point of all the ways his life has changed and why I should believe he is unlikely to go back to his old ways. In general, I am convinced that a person is serious about recovery if he seems to really appreciate and enjoy the benefits of sobriety, and has come to value them more than the drinking or drugging lifestyle. In AA they say that a grateful alcoholic is a sober alcoholic and generally that’s true. People don’t go back to abusing substances unless they genuinely feel they are missing out by being abstinent. If they have had a consciousness change to the point of realizing their life is much better clean and sober, they are likely to remain so. It is certainly better to have them tell their true story than to try to fake being in AA. Hearing officers see through that.
 
(iii) The risk of Petitioner repeating the act of OWI, OWVI, OR OUID is a low or minimal risk;
Some substance abusers/addicts think that they will be able to continue drinking and/or using substances, but they will simply refrain from driving under the influence. This almost never happens. Once they have begun to drink or use their inhibitions disappear and they are possessed with a heightened sense of self-confidence and invulnerability. Even if they have the judgment to let others drive most of the time, the situation will inevitably arise when they need to get somewhere while they are intoxicated and there is no one to take them. They then get behind the wheel with predictable results. The key component to addiction is loss of control, which may not occur every time they drink or use, but it is inevitable. The only safe alcoholic or addict is one who is committed to a lifetime of abstinence. Even with AA members, I tell them to forget the one day at a time; I want to know if they are committed to a lifetime of abstinence, and so will the hearing officer.
 
(iv) Petitioner has the ability and motivation to drive safely and within the law; 
Matt states that if his client has no 904 sanctions (MCL 257.904) he emphasizes this point to the hearing officer. If his client has obeyed the law during the time he has been legally unable to drive, he is more likely to continue to obey the law when he gets his license back. I have had people come in for substance abuse evaluations who have been driving on a restricted license for 20 years and never bothered to get their full licenses restored. Of course, this is a bad idea because it is more difficult to obtain a license restoration now than it was 20 years ago. However, if someone had been driving that long on a restricted license and they were still drinking/using, it seems inevitable that they would have received another OUIL. I can, therefore, give these people an excellent prognosis for continued abstinence with a high degree of confidence.
 
(v) Other showings that are relevant to the issues identified in paragraphs (i) to (iv). 
Matt says the 10 panel drug screen with integrity variables is crucial here. Some clients bring in 5 or 8 panel drug screens, or they bring in a drug screen without integrity variables. But the law requires these validity tests and if they are not there, it makes it much harder to prove the client is substance free. I am also concerned about the timing of the test. When clients delay having the test done, even though it is done within the required time period, it would seem to me suspicious. Better to have it done as close as possible to the evaluation. Good, detailed letters from credible sources are another thing that ads to the credibility of the client. I especially emphasize this to non-AA members because there is less evidence that they are doing what they say they are doing unless it is verified by credible sources.
Matt is a stickler for accurate dates whenever they can be obtained. But he also likes to have the driving record before the evaluation is complete because sometimes clients will omit an MIP or marijuana arrest inadvertently, and they all have to be included in the evaluation now. He discourages his clients from picking their own substance abuse evaluator because, in Matt’s words, “In the vast majority, cases are won or lost before you ever sit down at the hearing. If there are contradictions between the record and what the client told the evaluator, it’s going to look like the client has not been forthcoming and there is very little a lawyer can do to alter that impression.”
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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; (313) 802-0863, fax/phone (734) 692-1082; e-mail: michaelgbrock@ comcast.net.

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