EXPERT WITNESS: January 2014 changes to SOS 258

By Michael G. Brock

In January of this year the Secretary of State made a couple of changes to the process of completing the Substance Use Evaluation form which may seem minor, but are important.

First of all it should be noted that the Secretary of State is now specifically asking for the dates of last use of alcohol or NA beer, and controlled substances, including addictive prescription medications. This change actually made it onto the form in the previous incarnation in December of 2012, but anyone who does these cases knows that hearing officers are going to be concerned about the use of any substance that may impair the person's ability to operate a car, or that may be a substitute for alcohol, or a particular client's drug of choice. The fact that they are equally concerned about legal prescription drugs is no surprise either, since, according to the Center for Disease Control, prescription opiates kill more people every year than heroin and cocaine combined.

You know all that. What you may not have considered is that nobody has this information. Unless the person is in AA or NA and keeps track of their sobriety date, and they used all of their substances of abuse on the same last day, there is no way they could have certainty about these dates. The reason this is important is that the best you or I are going to get from your client is their best guess. The obvious problem with any guess is that you might guess one date one time and another date another time.

If your client's guesses are too far apart, they are going to be suspected of providing inconsistent answers. If they guess one date for me, another date on the request for hearing, another date for the letters that are being written on their behalf (and, depending on how long he or she has been abstinent, many of these people will have no idea when your client last used any substance) and yet another one at the hearing, even though it was not their drug of choice and it has been 20 years since their last use of the drug, they will be denied. Moreover, fishing for answers at their hearing looks really bad.

So they have to give you their best guess and then remember it. I tell them when they leave my office that this is now the "gospel according to you." You have to remember what you said. Of course, they will often say, "It's the truth; I don't have to remember it." But some of it has to be a guess and the client has to remember his guess, or, if you prefer, estimate.

The other change you need to be aware of is the Certification of the Evaluator, which now says:

"As of this date, I certify that I have reviewed Section 1 and completed Section 2 and that this Substance use Evaluation is true to the best of my knowledge and belief based on information obtained from the client, the client's known substance use disorder and mental health history and a client examination. I understand that the decision to grant, suspend or reinstate an individual's driving privileges rests solely with the Department of State, which may consider other facts or conditions when making this decision."

What is significant about this change is that the SOS is now saying that it is not limited by what is in this evaluation or its own rules when deciding whether to grant a license, but may consider anything it chooses and they have absolute authority to do whatever they want. Everyone already knew that, but in case you didn't know, they are telling you. You may also think you know all those other factors: Is the client still on probation? Have they been arrested for driving without a license? Are they taking legal opiates for pain, or Benzodiazepines for anxiety? And, if so, how long have they been on them?

But there are some contingencies you probably haven't considered. I recently got back a rejection letter for a client in which the hearing officer objected to the secondary diagnosis of "Misuse of Drugs NOS" (not otherwise specified). The hearing officer thought the diagnoses should have been "Cannabis Abuse" and "Cocaine Abuse." I've never attended a seminar by the Secretary of State on the use of the DSM, so I'm never entirely sure which diagnoses they consider acceptable in specific circumstances. Once I used the secondary diagnosis of abuse for a client's use of a substance in the distant past, and the hearing officer wanted to know why the client had never received treatment for abusing that particular drug of abuse.

When I did treatment for which insurance companies were calling the shots--that is, telling me which diagnosis they would pay and for how many visits, while informing me that the ultimate responsibility for the client's wellbeing was mine--they would always tell me why. For example, they had decided that Personality Disorders were untreatable. Maybe if the SOS was as clear as the bean counters about the proper use of the DSM, healthcare professionals could do a better job.

Looking over this particular denial letter, however, it was clear that the diagnosis was not his only problem, or even his chief problem. He had given me a different last drink date than he gave the hearing officer. Then he said his last use of drugs was in 2009, but corrected himself to say that he had last bought drugs in 2009, but last used drugs in 2008.

And whereas he told me he has used marijuana and cocaine on weekends when they were available, he elaborated with the hearing officer by saying that he was married at the time, but the marriage was not good. Therefore, he was going to hotels on the weekends with other women and smoking marijuana and crack cocaine. My guess is that his explanation was not particularly helpful in gaining the sympathy of the hearing officer.

Any time a client states that his substance use was caused by his problems rather than the cause of his problems it raises a red flag. First of all, it's probably denial. There may be some cases where a person drinks or uses drugs in response to a situation they can't cope with, but it's more likely that substance abuse is the cause of the problem. Perhaps more importantly, if circumstances can cause someone to abuse substances and drive under the influence, what is to keep that situation, or another situation the client cannot handle, from doing the same thing once they again have a license?

It is probably the case that what most people charged with a crime are inclined to say in their own defense is more harmful than helpful. Nowhere is that more true than in an appeal hearing, where any "defense" will inevitably be seen as (and probably is) denial. The question is not whether the client is "that bad." The hearing officer has the record of convictions; they know the seriousness of the problem. The only meaningful question is, "Are you doing what you need to do to solve the problem?"

If the client is making excuses for, or minimizing his or her substance abusing behavior, they are not taking ownership of the problem. If they are not taking ownership of the problem, it is very unlikely that they own an effective solution to the problem. If they have found no permanent and effective solution to the problem, they are not safe to trust back on the streets.

Similarly, appeals for sympathy don't carry much weight. Clients tell me, "I lost my job and can't find another," "My mother is sick and old and can't drive me around anymore, plus I have to take her to her doctor's appointments," "I'm missing out on all my kids sports/dance/music activities." Hearing officers know being without a license is a hardship. (So do I tell clients it's like being without a horse in the old west.) Having said that, they don't really care. They are not in the helping business. A hearing officer's job is to keep the streets safe. If your client can convince the hearing officer they can be part of the solution and not part of the problem, they will be successful. If not, they won't.

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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, Mar 19, 2014