EXPERT WITNESS: Tough new standards for driver license appeal--What attorneys and clients need to know

In (2)004 the federal government persuaded Michigan to lower its level of intoxication to .08 by threatening to withhold federal highway funds unless we did. Since then, the Driver Assessment and Appeal Division (DAAD), formerly the Driver License Appeal Division (DLAD) has significantly elevated its requirements regarding driver license appeal evaluations, thus assuming even greater powers than those afforded to it in a recent case essentially limiting the Circuit Court's authority to review DAAD decisions. The unpublished opinion states that such reviews must be based on an "abuse of discretion"; a term ordinarily used as grounds for an appeals courts to reverse or remand a lower court's ruling.

The New SUBSTANCE USE DISORDERS EVALUATION (ALCOHOL AND DRUGS) AND REQUEST FOR HEARING requests far more information than previously sought by evaluators handling these cases. It also affords hearing officers the authority to reach conclusions about clients they may not have not done sufficient evaluation or have sufficient expertise to assess, such as mental health diagnosis and its impact on sobriety. Be that as it may, they are the ones with judicial power in these matters, so it is important to give them what they want. The DAAD is currently requiring:

Demographics: Client Name: Date of Birth: Driver License Number: Client Mailing Address: Telephone No (daytime):

This is self-explanatory.

Lifetime Conviction History: Ask the client to disclose their complete lifetime history of convictions for operating while intoxicated, impaired driving, drug crimes or any other non-driving convictions involving alcohol or controlled substances. Include offenses and dates, and bodily alcohol content or drug type, if known, at the time of offense.

This is a departure from the previous requirement of including only those convictions that showed up on the clients driving record, which used to be only driving infractions. However, offenses such as Minor in Possession and drug crimes are now listed on the DMV record and must be included in the substance abuse evaluation or it will be presumed the client is hiding something. This does provide more evidence regarding the extent of the client's problem with substance abuse, and affords a better opportunity to find out if the person is substance dependent. Dependence is a key issue because it is something a very small percentage of people recovers from without help.

Moreover, if your client is substance dependent and is not part of an ongoing therapy or support group effort it is substantially more difficult to prove that he is abstinent and, as you know, the standard of proof is clear and convincing and the burden of proof is on the appellant.

(Client's) AUTHORIZATION AND RELEASE

I authorize the evaluator named below to furnish the information set forth on this form and to discuss the information contained therein with the Michigan Department of State.

Client's Name (Printed or Typed):

Signature:

Date:

Lifetime Treatment History for Alcohol and/or Drug Abuse: specify dates, program, city and outcome of treatment. Please review and attach each treatment plan and discharge report. Include treatment records for detoxification, residential/inpatient, intensive outpatient, outpatient (individual and/or group), education, and driver safety intervention courses. Detoxification/residential/inpatient: intensive outpatient: outpatient: substance abuse education: driver safety intervention course:

This section asks the evaluator to do a complete review of the client's treatment history, to assess their progress in that treatment, and to make source material from the client's counselor a part of the evaluation. Forwarding information from treatment sources, even with a release from the client, has traditionally been considered a violation of confidentiality, and this was before the HIPPA laws went into effect. Therefore, I take the information from the client and recommend that he provide the documents to the hearing officer if so requested. No matter how motivated the client, it is frequently a large and unrewarding hassle to get these documents from treatment centers, the law notwithstanding, but it is worth it to get whatever proof the client can. The person doing the substance abuse evaluation should review all of the materials which will eventually be considered by the DAAD.

Lifetime Support Group History: Specify all time periods of attendance and frequency, type of group, such as AA, Rational Recovery, etc., and whether or not the person has a sponsor.

The client should have signed verification of attendance. The client also needs to know that he has to do more than show up. He is likely to be asked questions by hearing officers (who know the answers) to see how much they actually know about the 1(2) steps. They may ask the client to name the steps in order or out of order, and to articulate what they are doing on each one or several of them. It is a good idea for the client to write out, for his own clarification and to be handed in if requested, each step, and exactly what action he is taking on it. The book, "The Twelve Steps and Twelve Traditions of AA" gives a concise analysis of what is intended by the author of the steps, Bill Wilson. Wilson used simple language; his explanations are clear and easily comprehended. They comprise about 100 pages. The hearing officer might also ask the client if he can recite the Serenity Prayer, which any regular attendee at AA would easily be able to do. If they don't go to AA it is unwise to pretend they do; the hearing officer will see through it.

Clients are also asked to provide 3-6 letters (which, of course, means six) from reliable people who can vouch for their length of sobriety. These are likely to be long-term fellow AA members, employers, family members, etc. However, if the letters are not dated, or contain no specific data regarding where and when the person attends meetings, a consistent and valid date for the commencement of sobriety, and the writer's signature, they will be discounted. This might be obvious to a lawyer, but it is not to the average client or AA member; they need to be told. I hand them the State's form outlining what information the letters must contain.

Most clients do not have letters with them at the time of the evaluation. If asked I usually ask them not to obtain them until after the evaluation because, if they do them prior to our interview they are frequently not done right. I prefer to have a chance to go over the requirements before they have wasted effort on useless or worse than useless documentations. If any information is missing from the evaluation and it shows up at the time of the hearing, the hearing officer will assume that the client lied to the evaluator or withheld information, and that is usually grounds for denial.

Testing Instruments: MAST (Attach the actual instrument used)

There are several testing instruments available, with varying degrees of accuracy, and sometimes different scoring systems for the same test. Like many substance abuse counselors, I prefer the Michigan Alcohol Screening Test. It is a questionnaire of 24 questions, which gives a fairly accurate picture of whether the person: a) has a problem; b) accepts the problem; or, c) is in denial of the problem.

I use the past tense to reflect that the person must have a minimum year of abstinence to qualify for an appeal, and modify the questions appropriately to reflect the use of other substances. The questions available in the version of the test that I like to use are as follows:

Michigan Alcohol Screening Test:

1. Do you feel that you were a normal drinker? Yes No (2)

2. Have you ever awakened the morning after some drinking the night before and found that you could not remember a part of that evening?

Yes No (2)

3. Did you family or friends ever worry or complain about your drinking?

Yes No (1)

4. Could you always stop drinking without a struggle after one or two drinks?

Yes No (2)

5. Did you ever feel bad about your drinking? Yes No (1)

6. Did your friends or relatives think that you were a normal drinker?

Yes No (2)

7. Were you always able to stop drinking when you wanted to?

Yes No (2)

8. Have you ever attended a meeting of Alcoholics Anonymous (AA) or any other group concerned about drinking?

Yes No (5)

9. Have you ever gotten into fights when drinking?

Yes No (1)

10. Has drinking ever created problems with you and your family, or friends?

Yes No (2)

11. Have your friends or any family member ever gone to anyone for help about your drinking?

Yes No (2)

12. Have you ever lost a job or been suspended from school because of your drinking?

Yes No (2)

13. Have you ever gotten into trouble at work or school because of drinking?

Yes No (2)

14. Have you ever lost friends because of drinking? Yes No (2)

15. Have you ever neglected your obligations, your family, your work or your schoolwork for two or more days in a row, or with any degree of frequency because you were drinking?

Yes No (2)

16. Did you drink before noon?

Yes No (1)

17. Have you ever been told you have liver trouble or other medical consequences of alcohol consumption?

Yes No (2)

18. Have you ever had withdrawal symptoms such as delirium tremens (DTs), severe shaking, craving, heard voices, or seen things that were not there after heavy drinking?

Yes No (5)

19. Have you ever gone to anyone for professional help about your drinking?

Yes No (5)

20. Have you ever been to a hospital emergency room because of your drinking?

Yes No (5)

21. Have you ever been a patient in a psychiatric hospital or psychiatric unit in a general hospital where drinking was part of the problem?

Yes No (2)

22. Have you ever been to a mental health clinic, gone to a doctor, social worker, counselor, or clergyman for help with an emotional problem in which drinking played a part?

Yes No (2)

23. Have you ever been arrested, other than drinking and driving, for drinking or other substance related behavior (drunk and disorderly, MIP, possession of MJ, etc.)?

Yes No (2)

24. Have you ever been arrested for drunk driving or driving after drinking?

Yes No (2)

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Answers that indicate a problem are "no" for 1,4,6,&7, and "yes" for all the rest.

Total Score:

RATING

* 0-3 Points, Low risk.

* 4-9 Points, At risk for problem drinking.

* 10 or more points, Probable Alcohol Dependence.

Additional questions pertinent to diagnosis:

1. How often did you drink alcohol?

2. Up to how much in a day/evening?

3. Demonstrating (i.e., increased tolerance and habitual addictive use):

4. Have you ever used other drugs (no matter how long ago or how many times)?

If your client has two or more DUIs and/or other arrests for behavior related to abuse of substances, he is probably an alcoholic/substance dependent, and is going to be viewed so by the DAAD. If he answers no to questions 1, 4 and/or 8, he is essentially denying that his drinking is out of control, so he is going to be viewed as being in denial by the evaluator and the DAAD. These are, in my view, the most crucial questions on the test for detecting denial. Questions (2)-11 are generally associated with an emerging problem, 1(2)-17 with an advancing problem, and 18-(2)3 with acute and/or chronic dependence.

When I began doing substance abuse counseling fulltime in 1977 it was not unusual to see people who had four of five drunk driving arrests, an enlarged liver and pancreatitis who still had a driver's license. I don't see that anymore. The earliest detection of a problem is usually by the courts these days, and that makes it harder for substance dependent people to admit their problem. In AA language, they get arrested long before they hit bottom.

By the time they develop advanced symptoms, alcoholics/substance dependents have drifted out of the mainstream culture and become marginalized. It is, therefore, crucial for clients to admit and accept their problem before this happens, and many people are, in fact, able to admit and accept their substance dependence on the basis of their encounters with the justice system. Tougher drunk driving laws are actually helpful to the alcoholic because they force him to face his problem while he still has some resources and motivation to recover, and before he has lost everything.

Diagnostic Impression (DSM-IV): Indicate all applicable alcohol, drug, and mental health diagnoses, supporting facts and remission status.

While the DSM IV focuses on increased tolerance and withdrawal symptoms in determining dependence, and while these symptoms may be in evidence; the most important symptom of this condition, as defined by E. M. Jelenick in his landmark book, The Disease Concept of Alcoholism, AA co-founder Bill Wilson in the book Alcoholics Anonymous, and indirectly by the DAAD standards for restoring an applicants drivers license, is clearly loss of control of the amount of alcohol consumed and significant impairment of performance and decision-making resulting from over-consumption. An appellant must prove that he has control of his behavior regarding alcohol in that:

"Section (ii) of Rule 13, (he or she) represents a low or minimal risk of repeating his or her past abusive behaviors.

"Section (iii) of Rule 13, that he or she is a person who represents a low or minimal risk of 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."

The DAAD also requires a person with loss of control as indicated by three of these five: 1) (2)x the legal blood alcohol limit, (2)) three or more convictions for DUI, 3) history of relapse, 4) diagnosis of substance dependence, and, 5) prior revocation or denial of license because of substance related offenses, to substantiate that they have maintained at least a year of complete abstinence before his or her driver license can be restored. In reality, there is little chance that anyone with less than a year of sobriety will get their license back, and if they have only one year, they will have to be impressive.

Although mental health diagnosis does have an affect on sobriety, unless they are licensed as a mental health professional at the master's level or above, most substance abuse counselors are not qualified to assess such a diagnosis or the impact it is having or is likely to have on the client's recovery. But the hearing officer will require that these issues be addressed, especially if the person has a history of mental or emotionally instability. It is important, therefore, to anticipate this probability and address these issues in the evaluation if one is qualified to do so. It would be unwise to have someone do the evaluation who cannot address these issues if the client has a serious mental health diagnosis, such as major depression or bi-polar disorder.

Drug Screen: (Administer a 10-panel urinalysis drug screen (or refer client) and submit a current laboratory report, that includes at least two urine integrity variables. Please include the confirmation test for any positive screen results.

I have a contract to send all my clients to Concentra labs for their ten-panel screen with integrity variables, and they are good about getting the results back quickly by email. I paste these into the body of the report and it makes for a professional, seven page, typed report. The lab used to argue with me on the phone that they do DOT tests and always test for integrity. I have convinced them I still need it in writing or the hearing officer won't believe it. The clients need to understand that if they are viewed as a questionable risk, the DAAD will look for a reason to deny them. In fairness, they have the burden of whether or not to put the rest of our lives at risk, so they have to be tough. The key is to not underestimate what is required. Like any appeal, the burden of proof is on the person already convicted of the offense; and there is usually more than one conviction.

Lifetime Abstinence History: Period of Abstinence (beginning and end dates): Abstinence Period Abated by What? (Any abuse of prescription medication or use of alcohol, controlled substances, or NA beer).

The DAAD used to ask for the relapse history, but has substituted this request for periods of abstinence. The potential problem here is that if the client claims a long period of abstinence and subsequently relapsed, it will be a read flag for the hearing officer. This is especially true of the person can't explain it. Typically, they relapsed because they stopped doing whatever was working for them, such as AA meetings, talking with their sponsor, working the 1(2) steps, and staying away from the drinking environment and friends. They need to be able to say what it was that fostered their relapse. But even well explained a pattern of chronic relapse will be a difficult obstacle to overcome.

Client Prognosis (Please check one): [] poor [] guarded [] fair [] good [] excellent. Provide supporting facts for this prognosis (consider the client's current living and work environments, lifestyle, relapse history, use of addictive prescription medications, and any other relevant factors that may affect the overall prognosis):

Prognosis for an alcoholic is essentially a prediction of the probability of relapse, and that is determined, at least in part, by the client's history of relapse. This history is asked for above in the guise of periods of abstinence. Some clients will express the attitude that if they have had long-term sobriety and then relapsed, they should be viewed as a good risk, but the opposite is true. If the client was sober five years, then relapsed and picked up another DUI, how can they insure that it won't happen again, and that this time they won't kill someone? It's a valid question. So is the question regarding the date of last usage; anyone active in a support group will be able to easily supply that date. Anyone not involved in a support group should be able to give a fairly accurate month and year.

Prescription medication, if addictive, can be a serious problem, and there are many alcoholics who will seek a substitute such as benzodiazepines or opiates rather that committing to a program of recovery. They are both prone to abuse these drugs/prescriptions and to relapse into active drinking, at which time they are likely to abuse both alcohol or their drug of choice and the prescription drug; a very dangerous situation.

A change in lifestyle should be evident in the client's behavior if they are to make a credible case that they are a low risk to relapse. Such a lifestyle change usually includes some or all of the following: disconnecting from drinking or using friends and the drinking or using environment, involvement in a support group, job promotion or better job, seeking advanced education, more stable family relationships, sober social activities and self improvement such as working out, biking, jogging, more involvement with children or grandchildren, reading, volunteer work, improved finances, increased sense of responsibility to others and increased self esteem and self control, better judgment, and a much greater overall satisfaction with life.

Continuum of Care Recommendations (Please check all that apply): [] Professional Treatment [] Educational Course [] Community Support Group (e.g., AA/NA, Women for Sobriety, SMART Recovery) [] Other [] None. Reasons for recommendations, or if none, please state reasons:

Recovery from addiction is always a long-term process, though many recovered alcoholics/addicts drift away from AA meetings after a few years and stay sober. From a hearing officer's perspective, involvement in a support group is tangible evidence that the person is actively working on their addiction. But people use a variety of supports to maintain abstinence and many of them work well depending on the severity of their dependence, their pre-morbid mental and emotional stability, and the general level of satisfaction they have with the life with which they have replaced drinking alcohol and/or drug use. This sounds almost like a "no-brainer," but there is a perverse twist to the thinking of a chronic alcoholic. When he is in his cups he is frequently walking the wire; his job, his marriage, his health and his legal standing in the community are often all on the line at the same time. Recovering from addiction, he often finds that these other problems have a way of disappearing; his wife is happy, his performance at work improves, his liver shrinks, his legal problems get resolved and he may even find that he has some peace of mind. At such a time the normal person will say to himself, "Boy, I really dodged a bullet." What does the chronic alcoholic say? "Man, I feel great...now I can really have some fun!"

AA advises its members to stay away from "wet places and wet faces." It is unlikely that any addict who does not change his friends, work, social activities and sometimes even family members if they interfere with his goal of permanent sobriety will remain abstinent. This may sound extreme, but Henrik Ibsen wrote a very insightful play about a woman who encourages a recovered alcoholic to drink because it suits her romantic vision of the free-spirited artist with vine leaves in his hair, with tragic consequences.

In "Hedda Gabler," after she urges the recovering alcoholic Lovborg to attend an all-night drinking party with her husband, Hedda uses the opportunity to destroy the only copy of a brilliant new manuscript Lovborg has penned. When Lovborg returns from the party in despair over his evening of debauchery and the loss of his manuscript, Hedda encourages him to commit suicide with one of her father's pistols, and then follows him into the hereafter by taking her own life. Just as there are many people who cannot accept their own addiction and the need for abstinence, there are also many who, for whatever reason, cannot accept the need of a friend or loved one to remain substance free. Such relationships are often a catalyst to relapse. The alcoholic/addict who fails to recognize this is setting himself up for failure.

CERTIFICATION OF EVALUATOR

In signing below, I certify that all statements contained in this evaluation are true to the best of my knowledge and belief.

Name: Michael G. Brock; Qualifications/Degrees: MA, LLP, LMSW

Signature:

Date:

Telephone Number: 313-80(2)-0863; Program Name: Brock Counseling and Evaluation Services; Program License Number: LLP 6301005806; Address: (2)514 Biddle; City: Wyandotte; State: MI; Zip Code: 4819(2)

The importance of all of this is that the process of regaining ones driving privileges is considerably more difficult than it has ever been, and this difficulty is being spelled out in the newest versions of the outline provided for substance abuse evaluations by the DAAD. It is the job of the treatment professional, the attorney and the client himself to prepare for this new reality if there is to be any hope of success at the DAAD hearing.

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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, (2)514 Biddle, Wyandotte, 4819(2); (313) 80(2)-0863, fax/phone (734) 69(2)-108(2); e-mail: michaelgbrock@ comcast.net.

Published: Wed, Jun 20, 2012