CURRENT STANDARDS FOR DRIVER LICENSE RENEWAL EVALUATIONS

In 2004 the federal government, taking another step toward solidifying and centralizing its power and usurping authority that once belonged to the states, succeeding in coercing Michigan into lowering its level of intoxication to the .08 by threatening to withhold federal highway funds (which president Bush is so fond of telling us, is really our money) unless we knuckled under.  It was, in the words of The Godfather, an offer we couldn’t refuse.

Since then, the Driver Assessment and Appeal Division (DAAD), formerly the Driver License Appeal Division (DLAD) has significantly elevated its requirements regarding driver license evaluations, assuming even greater powers than those afforded to it in recent cases essentially overturning the Circuit Courts authority to review DAAD decisions.  In upholding DAAD decisions, the Appellate Courts have admonished Circuit Court judges not to substitute their decision from those of the DAAD's reviewing officers.

The New SUBSTANCE ABUSE 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 have not done sufficient evaluation to assess, such as mental health diagnosis and its impact on sobriety.  Moreover, they may not be qualified to offer an opinion on the subject if they had.  Since the opinions issued by these officers do not contain their credentials, or even their first names, it is hard to know what they are qualified to determine.  However, in addition to the information traditionally asked for in substance abuse evaluations, the DAAD is currently requiring:

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.  It 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.  Dependency 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 there is virtually no way of proving that he is abstinent and, as you know, the burden of proof is on the appellant.

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.

Essentially, 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 that 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 his was before the HIPPA laws went into effect.  There is a question in my mind as to whether this is even legal, although it is ultimately the client who must send in the evaluation, so that might make it so.

However, it also appears to mean that the person doing the substance abuse evaluation must, or at least should, review all of the materials which will eventually be considered by the DAAD.  They do not say that the evaluator must consider the letters of confirmation by 3-6 persons vouching for the clients sobriety, but this is also a good idea; first, because he needs six letters, not three; and secondly, because the letter must be dated and signed, and must give the clients sobriety date or it will be rejected as meaningless, even if it comes from a reliable source.

Most clients do not have all of this material with them at the time of the evaluation, but they should if they are to have the best possible chance of regaining their driving privileges.  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 the evaluation is worthless. 

Testing instruments:

There are several testing instruments available, with varying degrees of accuracy, and sometimes different scoring systems for the same test.  Like most 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.  The questions available in the version of the test that I like to use are as follows:

MICHIGAN ALCOHOL SCREENING TEST

                                                                                                                     ____________

Total Score:

RATING

0-3 Points                              Low Risk

4-9 Points                              High risk for problem drinking

10 or more points                  Alcoholism

Notes:

If your client has two or more DUIs or other arrests for behavior exhibited while or connected with 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, 12-17 with an advancing problem, and 18-23 with acute and/or chronic dependence.

When I began doing substance abuse counseling in 1974 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 before he has lost everything.

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 must have signed verification of attendance.  Moreover, they 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 most likely to be long-term fellow AA members.  However, if the letters do not contain a date, specific data regarding where and when the person attends meetings, an exact 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.

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 12 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.

Please administer and submit a current urinalysis drug screen report, including urine sample integrity variables.

In a discussion with supervisor Swayze of the DAAD, I was told that an evaluation without a drug test would not automatically be rejected, but it is requested, and essential if the appellant has a history of abuse of substances besides alcohol.  I offer a six-panel screen that I do in my office, but it does not test for integrity variable.  I send those to Concentra labs for their ten-panel screen, but I have incurred criticism of even these test results if they do not specify that they have tested for integrity. 

The lab has assured me on the phone that they do DOT tests and always test for integrity.  I tell them I still need it in writing or the DAAD won’t believe it.  The client needs to understand that if the client is viewed as a questionable risk, they will look for a reason to deny him.  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 not to 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.

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, and AA co-founder Bill Wilson in the book Alcoholics Anonymous, and as indirectly by the standards set out by the DAAD 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) 2x 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.

While mental health diagnosis does have an affect on sobriety, 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.  It is probable that the hearing officer is not either, and it is certain that he will not do the mental health evaluation necessary to reach valid conclusions regarding an existing condition or its likely effect, but they will draw these conclusions anyway.  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 bi-polar disorder. 

Client Prognosis:

(Probability for abstinence or disuse and reasons for this opinion. Please indicate last date of use for alcohol and controlled substances, including illicit drugs, narcotic/addictive prescription medications and NA beer.)

Most of the people I see for these evaluations are substance dependent, and are therefore required to have at least a year of abstinence (the DAAD does not like the word recovery) from substance use to be considered for reinstatement.  They want to see the diagnosis, substance dependency (alcohol dependence 303.9) in full, sustained remission.  This diagnosis used to have a code in the DSM, but no longer does.  The old code for remission, 303.3, should not be used.

It may be unwise for newly sober people to drink NA beer, but this seems a little extreme to me.  Prescription medication, if addictive, can be a much more serious problem, and there are many alcoholics who will seek a substitute such as marijuana rather that committing to recovery.  They are both likely to abuse these drugs/prescriptions and to relapse into active drinking, at which time they are likely to abuse both alcohol and the illicit/prescription drug, a very dangerous situation.

Prognosis is determined in large part by propensity to relapse, and that is determined, at least in part, by the client’s history of relapse.  A history of relapse is asked for below, but should be addressed under this section.  Some clients express the attitude that if they have had long-term sobriety and then relapsed, they should be viewed as a good risk, but my experience is the opposite.  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.

Continuum of Care Recommendations

[Including professional treatment, educational courses and community support groups (i.e., AA, Rational Recovery, etc.)  If none, state reasons.]

Recovery from addiction is always a long-term process, and while many recovered alcoholics/addicts drift away from meetings after a few years and stay sober, they must have adequate supports in place or they will inevitably drift back to active substance abuse.  Moreover, involvement in a support group is the only tangible evidence one can present that they are actively working on their addiction.  Fundamentalist religious affiliation is not a substitute and, in my experience, often is a hindrance to sobriety efforts because of the teaching that one can be permanently delivered.

Lifetime Relapse History

(Lifetime history of periods of abstinence followed by a return to use of alcohol, controlled substances and/or NA beer.)

It is likely the client will be denied if he has not been sober this time longer than he was before his last relapse.

Analysis & Other Observations/Factors

(Please consider clients current living and work environments, lifestyle, and use of narcotic/addictive prescription medications and indicate whether any of these factors affect the overall prognosis indicated above.)

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, then follows him into the hereafter.  Just has 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.

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 and the attorney to prepare the client for this new reality.