THE EXPERT WITNESS: How unrecorded convictions affect AHS appeals

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By Michael Brock
and Matthew Zick

We ran this article in December of last year, but the problem comes up routinely in Administrative Hearing Section/SOS evaluations and hearings, and it is extremely  difficult to correct. Moreover, clients have a right to know before they schedule a hearing whether or not they have any chance to prevail, and our experience is that many attorneys expect that this clerical error will be easy to correct ex post facto.  It isn’t, so it is best to anticipate the difficulty and clear the matter up before wasting the client’s time and money by going to the hearing and being summarily  denied, then having to schedule a circuit court appearance before you can go back before the AHS.

It  also seem particularly hypocritical to ignore this problem when state officials talk about expunging criminal records for those denied a pardon from the governor, or who are not lucky enough to have their arrest records lost. This is simply a matter of treating those convicted of DUI offenses in accordance with the laws governing driver’s license restoration.  Is it really to much to ask?

Pursuant to MCL 257.732 the clerk of the court is obligated to send an abstract of conviction to the Secretary of State not more than five days after a conviction. However, as a practical matter, in certain courts these abstracts of conviction are routinely not getting processed. As a result the SOS is not being notified of the conviction.

This is particularly impactful in a DUI case. When the client is initially arrested, they are given a 625G permit (paper driver’s license) and their picture driver’s license is confiscated. The notation of this issuance is entered into the Law Enforcement Information Network (LEIN) and appears on the client’s master driving record. The 625G permit serves as a red flag to the Hearing Officer in a driver license restoration case that there is an open and unreported (hence unresolved) case. The HO cannot take action to restore an appellant’s driver’s license until they are able to establish that the 625G has been cleared. The permit gets cleared either through notification that the case has been dismissed, or a conviction has been entered.

A problem arises when the SOS receives untimely notice of an abstract of conviction from the court (a late received abstract). It is the SOS policy and procedure to refuse to backdate the implementation of the additional suspension or revocation to the date of the original conviction. Rather, the SOS will start the additional administrative action (MCL 257.904, or “904 action”) on the date of the receipt of notification from the court.

As a practical matter, that can lead to a situation where the client has served up to five years since their last conviction without the abstract ever having been sent to the SOS. Then, when they go to the AHS for a hearing, the HO contacts the SOS and the court sends the late received abstract to them. The revocation begins at that time, meaning that your client is not eligible for a license for another five years, thus turning a five year revocation into a ten year revocation.

The SOS has taken a hardline position on these cases, refusing to backdate the late received abstract because they maintain it is not their error. (True enough, but the error is on the part of the State of Michigan, and it is in their power to correct without causing the person injured by the State's error further hardship or unnecessary expense.) The client then is forced to file a circuit court appeal, requesting that the judge enter an order requiring the SOS to backdate the late received abstract, making him eligible for immediate review. Unfortunately, the unsophisticated client is often unaware that they even have any recourse under the law. Unless they consult an attorney, no one will tell them.

This has obvious negative consequences in terms of time and money for the clients, some of whom can barely scrape together the money for the SOS 258 evaluation. It is also clearly something the client has no control over. The implementation of the law in this manner makes him responsible for the inefficiencies of the court clerk. Moreover, there is no way the client can file this appeal in pro per; they will need an attorney, thus putting the procedure out of reach for those without the necessary funds, while making it more costly and time consuming for those who can afford to pursue the matter.

It is silly to argue about who is to blame; the problem needs to be solved. Either the SOS needs to allow these late received abstracts to be backdated, or get after the courts to report convictions in a timely manner. Not to do so is continue a policy of denying due process rights to those who can least afford to pay for equal treatment under the law.
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It is also worth noting that there has been a minor change in the SOS 258 as of September 2014 that asks for the results of the ethyl-glucoronide test (generally spelled “glucuronide”). This test is also referred to as the EtG test and is not required, but according to the AHS, was included in the form as a result of the test being submitted as proof of sobriety at an Appeal Hearing. Further information about the test is available at this web address: http://en.wikipedia.org/wiki/Ethyl_glucuronide.

Briefly, it can be used to detect small quantities of alcohol that a person has ingested, but cannot distinguish between these and alcohol that may have been applied topically, produced by ingesting foods, or inhaled in the environment. Efforts to establish a record of alcohol consumption from hair or nail examination are apparently even less reliable, and the use of the tests for any forensic purposes are questionable: “The U.S. Substance Abuse and Mental Health Services Administration has cautioned that the test is ‘scientifically unsupportable as the sole basis for legal or disciplinary action’ because the highly sensitive tests “are not able to distinguish between alcohol absorbed into the body from exposure to many common commercial and household products containing alcohol and from the actual consumption of alcohol.’” (Center for Substance Abuse Treatment. The Role of Biomarkers in the Treatment of Alcohol Use Disorders. Substance Abuse Treatment Advisory. Volume 5, Issue 4, 2006)
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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.

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