Driver's license restorations are subject to Murphy's Law

By Michael G. Brock

There is an old joke about the world’s first, fully automated pilotless aircraft. The passengers for the maiden voyage all board the plane and as they taxi toward the runway, a recorded voice tells them they are being transported by the most advanced remote control technology with multiple backup systems, so while there is no human pilot, they can rest assured that nothing can go wrong…can go wrong…can go wrong…

Of course, in the real world, and especially in legal proceedings, things go wrong all the time. Therefore, Murphy’s Law should be taken into consideration when making plans.  Murphy’s Law says, of course, anything that can go wrong will go wrong, and at the worst possible time.  I’m sure every lawyer has had the experience of the one contingency they didn’t think about or prepare for spoiling an otherwise good case, so you don’t need to be told about it by me.  However, in my admittedly narrow area of forensic expertise, and specifically driver’s license evaluations, I’ve probably experienced most of what can go wrong to prevent someone who has the required amount of clean time and is, in most respects, an excellent candidate from getting their license restored.  The following are some examples that I’ve have encountered.

The first has to do with the issue of a secondary diagnosis.  For DAAD purposes, the client has a secondary diagnosis if they have ever used any other drug besides alcohol, or been treated for any condition that may affect alcohol/drug abuse or dependency.  It can be difficult keeping up with the hearing officers on this one.  In the past, if a client admitted to having abused marijuana, I would give them a secondary diagnosis of cannabis abuse (305.2).  However, recently, one of the more “detail oriented” hearing officers denied one of my clients who admitted to using marijuana one time because he had not been treated for his cannabis abuse.  Now I use the DSM IV diagnosis Misuse of Drugs NOS (not otherwise specified, 305.9) for any past use of drugs not frequent or long enough to rise to the level of abuse or dependency, and a secondary diagnosis of abuse or dependency for any that do.

Clients must also come clean about any offenses that they have that are drug or alcohol related and they may want to discuss any other theoretically non-substance related offenses that occurred in sobriety/abstinence in the interests of gaining points for full disclosure.  I say theoretically because sometimes a client will say that they had an arrest, but it’s not on their record because of a “seventy-four eleven” or they may have an OUIL that was pled to reckless driving.  There are codes in the driving record that tell legal professionals whether or not a matter was alcohol related.  Moreover, if it’s not usually harmful to admit something the hearing officer doesn’t know, but it is always harmful not to admit something he or she does know.

In addition to the use of controlled substances, for which clients must provide a physician’s statement of examination (DI4P), the client will also have to explain the use of antidepressants or other psychotropic that do not show up on the dug screen because—though doctors frequently write scripts for anyone expressing discomfort or lowered mood, and though the client may not be involved in psychotherapy—if they are being treated for a mental health condition they must be given a secondary mental health diagnosis of (for example) Dysthymia (300.4) if they are taking these meds.  Their MD or therapist must also show that they are handling this depression of mood effectively and that it will not contribute to relapse into active addiction.

Another problem area that frequently arises is a client’s probation/parole status.  Although the law only requires a year of sobriety/abstinence before a person is eligible for driver’s license reinstatement, some hearing officers want to see the client sober/abstinent and off probation or parole for a year before issuing them a driver’s license.  The theory behind this unofficial requirement would seem to be that many people will toe the mark when there are immediate consequences for not doing so, but go back to their old habits when no one is checking up on them.  Some attorneys tell me they consider this requirement abuse of discretion and some report success appealing these cases to circuit court.

Drug test integrity variables are another potential problem area.  Current standards require a client to have a timely 10-panel drug screen with two integrity variables submitted with the substance abuse evaluation.  The purpose of the integrity variables is to insure a valid urine sample.  If your client is a health nut and drinks a lot of water, they may drop dilute urine.  Regardless of whether the lab you use considers this specimen dilute, if the creatinine is below 20, or specific gravity is below 1.002, the hearing officer is likely to consider the sample dilute.  If you go to the hearing with a dilute sample, your client will surely be denied.  Moreover, the longer the time between the urinalysis and the substance abuse evaluation, the more suspect the test results will be.  This is one of the reasons I started doing my drug screens at my office. 

Of course, it is also more convenient for the client and avoids the possibility of getting a test without the required integrity variables.

Another problem may arise after your client has been awarded a restricted license with an interlock device.  At some point they may, through no fault of their own, blow positive on a rolling retest.  This can happen for a variety of reasons—frequently as a result of eating pizza or some other food with yeast in it.  The client must blow zeros within a reasonable period of time (five minutes) or, if the devices is malfunctioning, go to a local police station for an accurate Breathalyzer reading within a reasonable period of time (30 minutes) after a false positive or the violation will stand. 

It is recommended to keep a bottle of drinking water in the car to help prevent a false positive or clear the mouth prior to attempting a retest after a false positive.  A violation is serious and may result in an extension of the required time on the interlock device by a few months or even a complete revocation of driving privileges.  A violation appeal must be filed within 14 days to challenge the findings.

Finally, when I finish an evaluation, I give the client an extra copy to study and tell him, “This is the gospel according to you; anything else is heresy.”  If your client changes their story before the hearing officer they will be denied.  The client may actually remember something they had forgotten, or do some fact checking and find an error, but it will sound like they can’t remember which lie they told whom, and that is most likely how it will be interpreted. 

Obviously, the worst case scenario is when the client claims to have been sober at the time they picked up their last OUIL.  This can happen inadvertently if it has been a couple of decades since their last offense and if the client is not in AA and is really not sure of their sobriety date.  If the client is vague about it, it is better to obtain their DMV record before the substance abuse evaluation is done so that you can help them reconstruct an accurate timeline.

The attorney is in charge of the evidence presented at the hearing.  The hearing officer has reviewed this evidence and is likely leaning toward or against granting a license before you or the client walk in the door.  As the process becomes more and more complex it is crucial that counsel review the evaluation, letters, and request for hearing, and make sure that all the i’s are dotted and t’s are crossed.