EXPERT WITNESS: One year license suspension? Good luck with that!

By Michael G. Brock

By way of an update regarding the Secretary of State driver's license restoration hearings, there have been some new developments that need to be taken into consideration by mental health professionals and attorneys involved in these cases. The major upshot of these policy changes is that what used to be a year suspension plus a month or two processing time to acquire license reinstatement is now likely to take much longer. Whether this is deliberate policy or just a byproduct of an increasingly complicated process is anyone's guess, but it involves a number of factors.

The first important change is that instead of a month it now takes an average of three months to get a hearing. The amount of material required to be submitted is substantially greater and therefore it must take more time to review, thus increasing the homework involved for hearing officers and lengthening the time they must spend on each file. The purpose of requiring the same information multiple times would seem to be to catch clients providing inconsistent responses and to deny their appeals on the basis of lack of candor.

This is consistent with the fact that many of the hearing officers have been trained as prosecutors and that police and prosecutors are trained to seek inculpatory rather than exculpatory evidence.1 If they ask you the same question four times and your answer is slightly different one time it can be presumed that you are a chronic liar and that nothing you say can be believed and your appeal can therefore be summarily rejected.

I tell clients to have their evaluation in front of them when they are filling out their Request for Hearing form. Attorneys may wish to help their client's with this form, though it represents an additional investment of time that might be difficult to charge for and remain competitive. Regardless, the attorney or in pro per client must understand more than ever the importance of being prepared before submitting the materials if they hope to have a chance at the hearing.

Besides being lengthy, the Request for Hearing form asks for the same information in more detail than is asked for in the substance abuse evaluation. One of these redundancies has to do with the client's relapse history. It seems that if the client reported no prior history of sobriety/abstinence before their current period, the fact that they weren't sober following their initial arrest is counted against them as proof of their failure to follow the law while on probation for that offense, so be sure to have them list all periods of sobriety regardless of whether they were voluntary.

Instead of a week or two it can also be a matter of months before your client gets a response from the SOS regarding whether or not their license will be restored. Why it takes so long for them to get back is uncertain, unless they are reviewing transcripts or video of the hearings looking for inconsistencies. However, it is what it is, the SOS makes the rules, and these are the current ones. If there are any inconsistencies between what is said at the hearing and what is submitted in writing, they will be grounds for denial of the appeal.

If the appeal is denied, the reasons for the denial will be spelled out in the denial letter sent to the client. It is very important that the client save this denial letter, as the reasons for the prior denial must be addressed in the next Substance Use Evaluation. Experience is that if the denial is not for something like not having a long enough period of sobriety or the client still being on probation, it will probably be for some type of inconsistency. This can include clients saying they are in AA, but not knowing what they aught to know if they were really active members.

Even if your client is approved for the restricted license, it is not a slam dunk that they will have their full license reinstated in a year. License awards often carry conditions, and it is important that the order awarding the restricted license is addressed, and that whatever terms are specified have been complied with when the client goes back for their full restoration hearing. This issue has been stressed by hearing officers to some of the attorneys I do work for. Neither clients nor their attorneys can afford to ignore the hearing officers' concerns if they hope to prevail. They are defacto judges; treat them with respect.

The need for competent counsel is clearer than ever. The SOS reports that the success rate of persons making their first application for license restoration is 50%. The feedback I get indicates that my clients do better, and evaluation errors made by incompetent or inexperienced evaluators obviously account for some failures. However, the attorneys I work with who do a lot of these cases report a success rate of around 95%. This differential represents a measurable value to the dollars clients spend on attorney fees for this service, especially considering that denial likely means another year and a half before the client can consider restarting their life after a suspension or revocation.

As a post script, if you send clients my way, make sure they have their DMV record or accurate information regarding their offense dates. This is the only information I really need from them (though accurate treatment history is also useful), but if they mess it up and the eval goes in with bad information, there is not way for you to fix it. If they don't get it to me, be sure that you do.

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1 You can follow this link or google YouTube Mike Brock Don't talk to police to find you how this works on a practical level. http://westernstandard.blogs.com/shotgun/2010/06/dont-talk-to-the-police.html

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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.

Published: Wed, Oct 16, 2013

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