By Michael Brock
and Matthew Zick
As you already know, if your client fails a rolling retest, he has five minutes to clear the bad blow before he or she incurs a violation. If it is not the machines fault, it is typically caused by eating pizza or some other product with yeast. The client can clear the machine by rinsing their mouth with the water they should always keep in their car for such occasions. If they are unable to clear the bad test-which may be equipment failure, or in one case of ours, the result of spilling washer fluid inside the car-they must get a clean test at police station, or a laboratory. It is important to note that urine screens are no longer accepted by the Secretary of State AHS. They must have either a breathalyzer or an ETG swab.
As we noted in our book, "Get Your Michigan Driver's License Back," the U.S. government's own research states that the ETG is notoriously unreliable, but it is now what the State requires, so be sure to inform your clients of this requirement. Most police stations will do the breathalyzer, but some now charge to perform the service. Make sure there is as much detail on the report as possible, such as the client's name and the officer who performed the test, where and when it was performed, etc.
Beginning July 1, 2016, all interlock devices must have cameras. The reasons for this are obvious, if perhaps unnecessary, since the rolling retest takes care of a sober person starting the car for a drunk person to drive. However, it is what it is, and the camera does certify who is doing the test with certainty. The cost to your clients with be about an additional $40 per month, bumping the price up to about $120 per mo.
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On the positive side, the problem with late abstractions causing needless expense and delays in the restoration process seems to have been resolved, thanks to presiding 3rd Circuit Court Criminal Division Judge Timothy Kenny looking into the matter for us. Many thanks to Judge Kenny.
We have also experienced some increased flexibility on the part of the State Hearing Officers with regard to submission of evidence that may not have been exactly in accordance with specifications. They have, in some cases, been allowing client's to submit documents at the time of the hearing, or after the hearing. This may be if they thought the mistake may have been made in their office. We are not sure, but it is a good sign that they have been willing to work with clients in what has become an increasingly complicated process.
There is also a bill currently pending before the legislature that would allow circuit court judges to issue a restricted license in cases on appeal from the AHS. At present, circuit court judges can only issue a full license, or remand the case back to the Secretary of State. Consequently, most cases are remanded, and about half of those result in a changed ruling. This bill could increase the odds of your client obtaining a desirable outcome on appeal, while reducing the time an expense required to obtain that result.
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By way of a reminder, the most common reasons for denial of a driver's license are lack of sufficient sobriety (must have at least a year clean), lack of sobriety outside a controlled environment, lack of treatment or substance abuse education, or lack of support group involvement. If these are not done before the client sees the attorney or evaluator, it is unlikely that beginning involvement at the time of that meeting will make much difference. However, if the HO says they want to see it at the next hearing, they want to see it at the next hearing. Clients ignore these recommendations at their own peril.
Among things clients and attorneys have control over, the most common reasons for denial are inconsistent or inadequate evidence. The more times a client goes to a hearing and presents a different sobriety date, inaccurate or incomplete arrest information, changes in periods of abstinence, changes in frequency, substances or amounts consumed, or changes in abstinence periods on the SOS 257 that are different than those given to the evaluator, the harder it is to make a credible case for continued abstinence.
Sometimes your clients may be deliberately dishonest, but most of the times these conflicts are the result of laziness. I will change factually data that is in accurate if an attorney calls me, I will not debate with him what he said to me at the time of the evaluation. Mostly, when they want to do this it is because they are afraid of looking bad to the hearing officer. The hearing officer already knows he has a problem, to argue that he doesn't is inherently self-defeating. As you know, a big part of your job is to try to keep your client from shooting himself in the foot, or in some cases, the head.
If you can do that, we have a pretty good chance of success.
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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.
Matthew A. Zick is a senior trial associate with Grunow & Associates PLLC in Flat Rock, Michigan.
Published: Wed, May 18, 2016
