The Expert Witness: What attorneys can expect at the DAAD hearing

By Michael G. Brock and Matt Zick

I asked Matt Zick to write this article with me because, though I have done thousands of evaluations, I have never attended a hearing of the DAAD (FKA DLAD, NKA the Administrative Hearings Section). I know that the mental health professionals who do these evaluations are allowed to represent clients at these hearings, but to my view it represents a conflict of interests. How can I be both an evaluator and an advocate? Moreover, if I went I would want to be compensated for my time, and if a clients are going to pay me to act as their “representative,” aren’t they better off hiring a real attorney? I think they are and that’s what I tell them. If they ask for a referral (or sometimes it seems like a good idea), there are several people who refer to me who do an excellent job on these cases, and I give them three names.

Most of the material in this article comes from Matt; I am just the one writing it up, so if you have a problem with something I say, blame him. I wanted you to know that before I make this first point in case you feel that this is shameless solicitation and self-promotion (moi?). The first point we want to emphasize is, before you go, make sure you have good evidence. If you have a poorly done evaluation, you can be Clarence Darrow and lose because your evaluator has already lost the case for you. If the evaluation is well done, but puts your client in a bad light, you might want to have a heart to heart with you client. Some attorneys I know won’t represent someone in one of these hearings that doesn’t go to AA. I’m not suggesting that needs to be your position, but if he or she is not ready, you need to find a way to get them ready. AA is one way to do that.

Don’t be late to the hearing! Nobody likes to be kept waiting. Moreover, you have a dedicated hearing time and if either you or your client is late, your client can lose his right to a hearing for another year. Make sure your client knows this. Remember Murphy’s Law: anything that can go wrong will go wrong...It’s best to tell your client to be there 45 minutes early. And don’t forget to fill out the appearance form which you will get when you check in for your case; don’t wait until you are called back by the hearing officer.

Next, prepare your client for what to expect. Many appellants are thrown by a video hearing and, if that’s what you have, you need to anticipate this and help them to make the adjustment. The process is somewhat stilted, like talking on a cell phone. Words can get dropped. You need to instruct your client that if he or she is at all unclear they must ask the question to be repeated, and then answer slowly and distinctly. They also need to be sure to talk a little louder than if they were face to face. They are already going to be nervous, and this will require additional effort.

It’s always a good idea in any legal proceeding for the client to take time and formulate his or her responses when testifying, but in a video-hearing they have to be especially careful not to talk over the hearing officer. And they want to be very sure they are answering the question that has been asked, and not the question they are anticipating. I find this can be a problem in the evaluation, i.e.:
“Have you ever used substances other than alcohol?”

“No.”

“You do understand that never means never?”

“Oh. Well, I smoked weed in high school...”

Anything the client says in the hearing that is contradictory to the evidence already submitted will be viewed with skepticism-either as outright dishonesty, or as making things up on the fly. Neither one is helpful to your case.

The attorney should not give an opening statement, though it is allowed. The hearing officers want to get on with it because they know the issues and it would be redundant. When you first sit down you put your appearances on the record, then the hearing officer will then go though all the exhibits he has received. It is helpful to have a check list in the order that you present them; usually eight or nine exhibits, i.e.:

1. Substance Abuse Evaluation (usually including drug screen)

2. Toxicity screen (Make sure creatinine is over 20 or the sample will be considered dilute.)

3-7. Letters of support (put most relevant and strongest letters on top). Your client must have at least three good letters. Letters must be signed dated, notarized, and contain address and daytime telephone numbers of the authors. They must be dated within 90 days of submittal and they must refer to the date of last substance use. Some omissions might not be fatal, but this one is.

8. AA sheets

9. Order of discharge from probation by the court

The hearing officer will tell you to call your first witness, which will typically be your client. He is sworn in by the hearing officer, and then they typically turn over questioning to the attorney (most will; some do their own questioning). Your questions should be oriented toward establishing the evidence in rule 13, and should include:

1. What is your current relationship to alcohol? The proper answer to this question is none, since he or she is not eligible unless they have a year of abstinence.

2. What is the client’s abstinence date for each drug? The client must know their abstinence date for all substances. If they give different information to the hearing officer than that appearing in the evaluation, the request for hearing document, or the letters of support, the client will likely be denied for supplying inconsistent information. It is also crucial that the attorney know this information and have a copy of the evaluation handy to check the information before he speaks to the issue. We know of cases where inconsistent information provided by counsel was the grounds for denying a license.

3. Always ask if they had any non-alcoholic drinks like sharps or O’Doul’s, and make sure your client knows that this is not permissible.

4. Ask if he keeps any alcohol in the home. As a rule, the hearing officer will want to be assured not only that your client is not drinking or using, but also that he is avoiding “the near occasion of sin.”
5. Ask who lives in the home with your client, and whether or not they drink or keep any alcohol in the home. If they are drinkers, they may provide too much temptation for the client to be reasonably expected to stay sober. Moreover, drinkers like company, and most alcoholics would not be above sabotaging the sobriety of even a loved one in order to have a drinking buddy.

6. Ask the client what is different about their lifestyle now than when they drank? If they are sober/abstinent they should be showing improvements across the board: better relationships, better job and better performance on the job, more money, more education, more responsibility, better self-esteem, better health, healthier activities, etc. Even if your client is abstinent, if they are not making any progress in life, what is the probability that they will remain so? If they don’t have something they want more that alcohol or getting high, they are more vulnerable to relapse.

7. Ask how they feel in their sobriety. This is an appeal; they have to make the case that they are strong in their sobriety if the evidence is to be clear and convincing.

8. Keep in mind that it’s better to deal with relapse questions on direct examination rather than leaving them to the hearing officer on cross. They are more likely to get rattled by this if they feel the questioner is skeptical. Ask them why they continued to drink after the first or second DUI. They have to be able to explain what is different this time if they hope to be reinstated, and the more DUIs they have, the more scrutiny they will inevitably come under. Dealing with this issue effectively is crucial.

Prior to the hearing the attorney should obtain a driving record, make sure all substance-related convictions are listed in the evaluation and request for hearing, and be particularly aware if the client was involved in an accident, especially an injury accident. Also make sure that your client is extremely forthcoming. You are always better off telling them something than trying to conceal it. Both of us have had the experience of a client being denied because they left off a minor in possession or even drug trafficking conviction because they thought it wasn’t relevant or had been expunged. If the hearing officer thinks your client is hiding anything they will be denied.

Direct examination is typically 20-25 minutes; then the hearing officer will ask some follow up questions. Counsel can then do redirect, after which he may call additional witnesses, but the attorney should let the hearing officer know at the start if he plans to do so. If you do have one or more additional witnesses, you call them in one at a time. They are sworn in and give their testimony; then you bring in your next witness.

Finally, you give your closing arguments, going through the rule 13 factors and pointing out where they have been covered in the evaluation. These include:

1. Diagnosis; be sure to include all substance abuse and mental health diagnoses and confirmation that they are under control.

2. Prognosis for future abstinence: establish that your client is a low or minimal risk to repeat abuse of alcohol or controlled substances, and;

3. Establish that your client is a low or minimal risk of repeating the act of drunk driving.

4. Establish the willingness and ability of your client to drive safely and within the law. Address the issue of driving while suspended/revoked if it’s an issue.

Clients ask if they have to have the AA 12 steps memorized. Mike tells clients that AA is a two edged sword; that if they say they are in AA, they are expected to possess the minimal level of information that one would expect of an active AA member. I suggest that if they have difficulty memorizing the steps, they write them out, then write out what action they have taken or plan to take on each individual step. The association will help them to remember under pressure.

Matt tells clients that they don’t necessarily need to have the steps memorized, but they do need to be able to say in their own words how they work the program. Hearing officers typically ask which step the client is currently working, and any step before that is fair game. Clients might also be questioned if they testify that they are still on an early step, though they have been around 12-step groups for several years. Matt asks the client what step they are now working, which was the most difficult step, and which step did they find the most beneficial.

If you have adequately questioned the client, the hearing officer is less likely to hammer on a particular point than if you glossed over it. Areas you have not covered will be scrutinized more carefully by the hearing officer. If your client is in AA it is important to have demonstrated a sufficient working knowledge of the program and the 12 steps. The key is to demonstrate an understanding of the principles and the client’s ability to apply them to his daily life. Clients should also know basic information like: the serenity prayer, the founders of AA, two or three of the 12 traditions, and the format of the meetings.

If the person is not in AA, the attorney must demonstrate that the client has achieved a credible lifestyle change as evidenced by: length of sobriety, prior relapse history, educational or job achievement subsequent to abstinence, and a change of attitude to one that shows the client thinks of sobriety as the reward and not as a punishment. Hearing officers know that if the client thinks he is denying himself the pleasure of alcohol he will likely drink again, but if he is truly grateful for the rewards of sobriety he is likely to remain abstinent.

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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; website, michaelgbrock.com.
Matt Zick is an attorney in Riverview.

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