EXPERT WITNESS: No time like the present

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By Michael G. Brock

The Secretary of State Administrative Hearing Section requires clients to have a year of sobriety before they are eligible to file an appeal to get their license back. Very few people with attempt get their license back without the required period of abstinence, but many wait years longer than necessary to apply.

There are many reasons why people do this: they fall into a comfortable pattern of living without a license, find people to drive them around, find work close enough to walk to work or ride a bike, and simply adjust to being without a license. It is also sometimes the case that they try once or twice to get their license back, but are turned down because of a bad evaluation, or some other reason that has nothing to do with whether they are sober or can be trusted to drive safely and within the law.

Regardless of the reason, waiting is always a bad idea. The time will inevitable come when our clients will need a driver's license, and if they wait until they need it, they have waited too long. The people they relied upon to get them around may be aging parents, who at some point will no longer be safe drivers themselves, and may even be in a position where they have to depend on the unlicensed driver to get them to their oncologist appointment. The driver may move, get put on a different shift, or be offered a better job. Our client may get sick and need a license to get to his own doctor's appointment, or he may simply decide that he wants a better job or more out of life.

He may have driven for years without a license and have recently been arrested for driving without one. He may have a kind judge who is willing to dismiss the charge if our client starts the appeal process-or he may have another year or more tacked on to his suspension.

And the process gets more difficult all the time. Don't you remember when they got a thumbs up or down the first try, which may actually have been only a year since they got busted? When they didn't have to have a breathalyzer? When there was no drug test? When the request for hearing form was one page? It wasn't that long ago. Now the client gets asked the same question so many times he may get tripped up even if he is telling the truth. They may get locked out of their vehicle by a bad breathalyzer and have to start from square one.

Waiting is a really bad idea that gets worse all the time. There are also a lot of reasons to do it now. If our client is turned down they must tell him why and he can correct the problem and be successful in a year. Maybe they want him to do more AA or therapy; or maybe have more clean time. Maybe they want him off prescription meds that some idiot thought were a good treatment for addiction. Maybe they want him to list all his offenses, even the ones he thought were irrelevant.

Whatever the problem is, it can be fixed. Some clients think that with enough time since the last arrest they simply have to give the license back, but that is not so. A bad case after 20 years is still a bad case.

It also makes a difference to have a good eval. Why would an attorney not be specific about who his expert witness is? If there is one thing I have learned from hanging around lawyers and courtrooms, it is that control is everything. The more things a lawyer is in control of, the better his chances. In an AHS hearing you are in control of the evidence you present, which is the most important part of the case.

I often tell clients that it doesn't matter how bad they were. If they can convince a hearing officer they are "born again," they can be successful at the hearing. You simply can't do that without an evaluation that is done well and favors your client. Most evaluators try to be helpful; it is in our nature and training. Knowing what is helpful and what is harmful is the difficulty. Sometimes an evaluator says something meant to be helpful that is sure to get the client turned down. Control the evidence. If your client can't afford a good eval he can't afford a lawyer.

The lawyers I work with are good and they are successful about 95% of the time. Even though they do their homework, some people just aren't ready, or they say something self-defeating at the hearing. One guy that I thought was a slam dunk, bonafide AA member with three years of sobriety got turned down because he took some idiot to the hearing who claimed he had been abstinent ten years. One lawyer I work with says he would never have a witness at a hearing. You never know what they will say in an effort to be "helpful."

I had a woman come in this week who was a half hour late for her appointment. On that basis I expected someone with questionable sobriety, but I was surprised to find that she was actually quite committed and convincingly abstinent. I told her that I was giving her an excellent prognosis, but that if she showed up late to the hearing she might as well stay home and save everyone the trouble. The strange thing is, I think she was late because she was afraid of the eval. Know your clients; get them there early.

Most people who are not successful at their hearings have sabotaged themselves in some way; they are still drinking, taking something they don't need, have a bad attitude, feel they are entitled, or-and this is crucial-are unable to show life improvement that is commensurate with someone making a valid recovery from substance abuse/dependence. If your client is sober five years and still hanging with the old friends, has no new hobbies, still has poor self-esteem, and cannot show any tangible benefits of abstinence, it begs the question as to whether he is really sober. AA members say, "If nothing changes, nothing changes."

It goes without saying that if the hearing officer makes a suggestion, it should be followed. However, something else I sometimes see is that once they get a restricted license some clients will stop doing what got them sober. They stop going to AA, working the steps and talking to their sponsor. They drop out of therapy, or turn up with positive blows the morning after from some drinking the night before. It's hard to make a clear and convincing argument that someone else drove the car.

All of the measures that are in place at the AHS were put there for a reason. If your client gets stupid or overconfident after being awarded the restricted license, they will find a way to lose it, and wind up at square one. The best way to keep momentum going forward is with the behavior that got them to where they had their initial success. Most importantly, there is no time like the present to begin the process.

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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, Dec 16, 2015

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