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Rules Are Rules
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| Michael G. Brock, MA, LLP, LMSW |
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Michael G. Brock, MA, LLP, LMSW is a private practice Mental Health Professional in Wyandotte,
MI providing driver's license evaluations in the State of Michigan.
| Rules Are Rules DAAD R 257.313
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Rules Are Rules
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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.
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(i) |
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Petitioner's alcohol or substance abuse problems, if any are under control; |
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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.
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(ii) |
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The risk of Petitioner repeating his past abusive behavior is a low or minimal risk; |
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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.
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The risk of Petitioner repeating the act of OWI, OWVI, OR OUID is a low or minimal risk; |
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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.
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(iv) |
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Petitioner has the ability and motivation to drive safely and within the law; |
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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.
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(v) |
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Other showings that are relevant to the issues identified in paragraphs (i) to (iv). |
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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.
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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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To learn more about the process, you can read these published articles by Michael Brock:
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Contact Michael G. Brock, MA, LLP, LMSW
today at 313-802-0863, or browse the website for more information
Michael’s services.
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