EXPERT WITNESS: When is an administrative review a good idea?

By Michael G. Brock

In the State of Michigan/Secretary of State's most recent revision of the package "How to Prepare for an Administrative Review or License Appeal Hearing Involving Substance Use Related Offenses, (DAAD-66 Revised 4/15/11)," the provision regarding requirements for seeking an administrative review states:

"You are eligible for an administrative review if you meet one of the following requirements and the licensing action you are appealing does not involve a fatality:

"* You are a Michigan resident with two or more alcohol and/or drug related driving convictions and you are currently on a restricted license that was approved at a previous license appeal hearing, or

"* You are not a Michigan resident and attempting to clear your Michigan driving record.

"* You will not have to appear in person for an administrative review. Instead, the Department of State will review the documents you submit and its own records to determine if your full driving privileges can be reinstated. You will receive a written decision by mail. If the decision is unfavorable, you can still request an in-person or video hearing. You may only request one administrative review in any 12 month period."

Sometimes clients will state that they want to go for an administrative review at the first hearing, but the rules clearly indicate that this is not allowed. Many clients who are eligible ask me if they should seek an administrative review at the second hearing, after they have obtained their temporary license and are seeking to have their full driving privileges reinstated. My answer is, "It depends."

First of all, if the client is represented by counsel, it's the attorney's job to recommend what course of action the client should take with regard to this matter. My advice to anyone so represented is to follow the advice of counsel. Moreover, they should also have their evaluation and letters reviewed by their attorney for possible errors or omissions. I don't generally make it a practice to review letters as part of a substance abuse evaluation, though I will if asked. Rather, I provide the information from the State of Michigan site http://www.michigan.gov/documents/DLAD-66_18914_7.pdf regarding what needs to be in the letters, in case the client has not received a packet from the State, or visited the above website.

It is of particular importance if the client has not gone to AA, or has discontinued going, that he obtain sufficient and credible letters that support his continued sobriety if he expects to have a chance at license reinstatement. This is doubly true if he is going to seek an administrative review, because what he or she submits is all there is. Moreover, it is easy enough to get letters of support from parents, siblings or other family members, but those coming from employers, probation officers, therapists, police officers or stable AA members probably have more credibility as these people have a disincentive to lie on the client's behalf.

In addition to the materials required for an in-person hearing-a 10-panel drug screen, ignition interlock final report, evidence of support, and documentation of sobriety - the client seeking an administrative review must also fill out and have notarized the Petitioner's Affidavit. This form requests much of the same information that is in the substance abuse evaluation, and it is imperative that they match. If they don't, even because of an honest mistake, it looks like the client can't keep his or her story straight and that's a serious problem. I had one client in another state who was a year off on one of his dates and the DAAD wanted statements from both him and me verifying the correct date. He was able to resolve the matter without coming back to Michigan, but they could have made him appear in person and almost did.

If the client is asking my advice and is not represented by counsel, I usually ask if there were any problems with the interlock device, if he received any tickets during this time, or incurred any kind of problem that would send up a red flag. If the answer is no, then an administrative review would seem to be a good way to go. If nothing else, it saves him from the opportunity to put his foot in his mouth, or making mistakes due to the jitters while under the pressure of questioning from the hearing officer. It could also save him or her the expense of taking a day off work, and some clients feel that it obviates the need for legal counsel the second time around. That is entirely their decision and I do not make recommendations as to whether one should have legal counsel or go it alone. The exception is when someone is clearly too anxious or scattered to acquit him or herself properly on their own and would seem to have no chance without legal representation. In such cases I refer them to the attorneys who refer to me and who I know do a conscientious job.

However, if the answer is yes, and there has been any kind of problem, that needs to be and can be explained, then it would seem to me that a face to face meeting is the best way to do that. For example, I had one client whose car caught on fire with the interlock device in it. It was not the client's fault; he just had a car so old that the wiring shorted out and caused the engine to catch fire. He was able to document this with pictures and a police report and present it at a hearing, where his explanation was accepted and his driving privileges were reinstated. It seems unlikely, or at least more difficult, for one to be able to adequately explain an event of this nature without being present.

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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.

Published: Wed, Jun 15, 2011