EXPERT WITNESS: Go strong or go home

By Michael G. Brock There are times when someone is simply not ready to attend a driver license appeal hearing, and that situation presents a challenge for both the attorney and the evaluator. The attorney has to decide whether or not he or she wants to take his or her client before a hearing officer that is almost certain to rule against his or her clients. The evaluator faces the same dilemma with the client who is not ready to go for a hearing. Do you give him or her an evaluation that is certain to send them to their doom, or advise them to wait and try again when they are better prepared? I would generally choose the later course, but some people have their minds made up to try and can't be dissuaded. If he or she is not represented by counsel and will fare poorly, I can at least tell him or her they would be wise to consult an attorney. But how do you know if the client has a good chance, or if he or she is headed for certain rejection? It should be pretty apparent to most evaluators, or to an attorney looking over the client's evaluation. Some of the indicators are: How recent is the client's last conviction and how recent is his or her last drink? If he or she has a conviction within the last year, then they are probably not eligible for a review. According to the law he or she must have at least 6 months1 of sobriety/abstinence in some cases, or 12 months in other situations, but as a matter of practicality, there is very little likelihood that anyone with less than a year of clean time is going to get his or her or her license back. This goes double if the person has had an extended period of abstinence in the past and has relapsed. If he or she has obtained a license after two OUIL convictions and has been arrested again for the same offense, the hearing officer is going to be very skeptical; and if they've had positive readings on the interlock device, they will be denied unless there is some very credible and persuasive explanation. If the client has had no treatment and no AA they are going to be a difficult sell. The person may be abstinent, but how did they reach that point, and how can they document it? Letters from family and people who like you will only go so far. It is not unusual for hearing officers to tell clients to involve themselves in therapy or AA for a year before coming back to the DAAD. If they say they have been involved in AA they will have to know enough about it to make their case. If people tell me they have been to meetings but don't know the basic things any member should know - who Bill W. and Dr. Bob are; what is the Serenity Prayer; what is step 7 and how do you work it, etc. - they aren't selling me, and the hearing officers know their stuff and can easily sniff out BS. What is the person's score on the MAST? If they have four drinking and driving offenses, a low MAST score is not very credible, especially if they are answering questions in a way that suggests they can control their drinking. If they don't think they have a problem, how can they convince someone they have a solution? Whether it is by accepting AA's first step, "We admitted we were powerless over alcohol; that our lives were unmanageable," or that they just got tired of banging their head against the wall, they have to express the understanding that drinking has led to problems in the past and will inevitably lead to more problems if they continue or else where is the motivation to quit coming from? If the only motivation is to get their license back, they will in all likelihood go back to using substances once they have what they want. Does the client accept a diagnosis of substance abuse/dependence and possibly a secondary mental health diagnosis, or do they want to debate the issue with something that sounds like, "I'm not that bad?" How often and how much do they admit to drinking/using? Is it a credible amount, or are they minimizing their use and claiming bad luck? Once may be bad luck, but more than once shows a pattern and a problem. No problem? No solution. Drug screens that are positive for anything are not helpful, even physician prescribed drugs of an addictive nature. Addicts can get anything they want out of a doctor by lying, and many doctors' solutions for any problem are to prescribe medication. If an addict is jittery early in sobriety, he or she may just need to ride it out. If a client is on Benzos or other such drugs I tell them to get a letter from their doctor stating that they need to be on it and that it will not interfere with their driving. Even with this, I am skeptical. Maybe they need more support and should go back to AA. Sedation is our solution for most of the ills of American life, and while it is often necessary and proper, it should be used as a last resort and not the first choice, which is how we, as a society, use it. How often has the person gone back out to test the waters? Do they have a reasonable period of sobriety, and does it appear that they have turned a corner at that point, made a lifestyle change and can be expected to remain abstinent permanently? Have they changed their friends? Do they have adequate support from AA, family, sober friends and colleagues, church, etc, or do they still hang with the people they got high with? If they do they almost certainly will use again. Sober people get involved in sober activities, renew old hobbies or find new ones, and if they don't drop their old friends, their old friends drop them. Often to their surprise, they find they had very little in common with the people they drank with other than alcohol and/or other substances, and both parties are uncomfortable when the tie that binds is removed. Can the person really sell me on the fact that he or she has changed, has embraced his or her or her new sober life as having much more to offer than the old drinking life, and is abstinent because they is what they really want and not just something they grudgingly have to do? If I can't give someone a good or excellent prognosis, I don't have very much confidence in the future of their sobriety. If I saw a fair or guarded prognosis and I was a hearing officer, I would not likely give that person back their license. It reminds me of what Dr. Ogden told me when I had my first substance abuse job at Garden City Hospital in the late 1970s; "Never criticize anyone; damn him; damn him with faint praise." If the evaluator thinks the person needs to do more than he or she is doing to remain sober, then maybe they are not ready to go before the hearing officer, who is certain to be as conservative, and is likely to be more conservative, than the evaluator. Seeing that the evaluator recommends more help or support than the client is getting, the hearing officer is likely to recommend that the changes be instituted before a restricted license is granted, and that the client try again in a year. Appeals for sympathy have little impact when balanced against the safety of the public, and behavior and attitude are the only measurable commodities for the hearing officer to assess. If they don't add up to a person who is ready to drive yet, maybe the hearing should be put off until he or she is ready. ---------- 1 There is actually a provision that would allow someone to keep a restricted license with an interlock device with two or more OUILs if they are in a drug court program, but I've never seen that provision applied. I don't know who would want to take on the responsibility in the (inevitable) event the driver could injure someone after subverting the sobriety check by having a passenger pass the breath test. ---------- 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. Published: Wed, Oct 19, 2011