EXPERT WITNESS: When 'Request for Hearing' does not mean 'Request for Hearing'

By Michael G. Brock Even before the State DAAD redesigned their Request for Hearing form again in October of 2012, I had become aware of an important trend in the outcome of driver license appeal hearings. From client and attorney feedback I noticed that, providing a person was qualified to regain their license and had not been disqualified by one of the stated reasons they might not be eligible (e.g., less than a year of sobriety/abstinence), or one of the unstated reasons (they were still on probation or parole), the most common reason for one of my clients being denied a license by a hearing officer was inconsistency between the information provided in my Substance Use Evaluation and the information they provided at their hearing. Sometimes an inconsistency might be glaring - they neglected to tell me about one of their offenses, or told me no when I asked about other substances they had used and told the hearing officer yes. But sometimes it would be something relatively minor - the last use of a substance was alcohol in 2006, but the last use of cannabis was in 1999, and they told the hearing officer 2000 for marijuana. If clients have not been prepped for the hearing by their attorneys or have not read the evaluation over carefully, they could easily get this wrong. Even solid AA members usually can't provide an accurate date for their last use of each specific substance. AA members celebrate only the last date of the use of any mind altering chemicals for recreational purposes. This might get a little fuzzy if the person was using drugs for a "legitimate" medical purpose and couldn't get off them when the doctor determined they were no longer necessary. But the capacity for self honesty obviously plays a role here, and legitimate AA members are not likely to take opiates or benzodiazepines if there is anyway to avoid them. I haven't seen a hearing officer deny a solid AA member a driver's license on the basis of not knowing their last use of marijuana, but I have seen others with less substantial proof of support refused. That is one reason why I have always given clients two copies of my report and told them to know what's in it because that is the gospel according to them. Not everyone listens. One of my clients was told by a hearing officer that, "There's a price to be paid for stupidity, and you're going to pay it." He did. That being said, the challenge for the client to remain consistent has become much more difficult with the newly designed forms. The Substance Use Evaluation (SOS 258) has remained unchanged in most respects, but there are a couple of changes that need to be addressed. There is a question about Drug Assisted Therapy that needs to be answered, and - significantly or insignificantly - there is a statement that says, "I understand that this form may also be used as my written request for hearing." Upon reading this statement in the Substance Use Evaluation one might get the false impression that, unless you are from out of state, it is not necessary to fill out form SOS 257, titled Request for Hearing. That is not what they mean. What they do mean when they say Request for Hearing is anyone's guess. However, they expect SOS 257 to be filled out in its entirety. This form includes a lot of duplicate information. It asks again for the client's contact information, conviction history, substance use history (including last use of all substances), treatment history, self-help group history and continuum of care in greater detail than the Substance Use Evaluation, and it asks the client if the information in the Substance Use Evaluation is accurate. In addition, it asks for an Evidence Affidavit to be signed and submitted along with the previous information, and for attorney contact information, the only piece of information not provided elsewhere. The obvious reason for requesting the same information three times instead of only twice (on the Substance Use Evaluation and the hearing) would seem to be the expectation that the more times the same information is asked for the more likely the client is to contradict himself and thereby provide a rationale for denying him or her a license. And this points to a problem with end-running the United States Constitution and due process of law, which is what the Michigan Legislature did by taking the determination of who can have a driver's license out of the hands of circuit court judges and turning the process over to the Secretary of State in an manner which is unregulated and unaccountable. True, this action has undoubtedly saved some lives because hearing officers are not answerable to voters and do not need to consider whether or not they will be re-elected or get campaign contributions from fellow attorneys when they render a decision. Consequently, we don't have active alcoholics with five DUIs still on the road endangering the public like we did when I first started practicing in the 1970s. However, by employing lawyer double talk to redefine the right of transportation as a privilege (What business does the government of a free society have deciding who will have the "privilege" of transporting himself from one place to another?) and, therefore, not subject to the same constitutional and legal protections as other rights, the State has created an increasingly complex and unaccountable bureaucracy which, even though it is making legal decisions about its citizens, can change the rules of that process at whim and doesn't even have to mean Request for Hearing when they say Request for Hearing. This is a dangerous precedent. What other rights can be re-designated as privileges so they can be put beyond the reach of due process and into the hands of bureaucrats who define their worth by how much paper they generate? Moreover, if we just allowed all our prosecutors to double as judges, wouldn't it save the taxpayers money and make for more efficiency in the legal system? It might, and you can never really have too many people in prison, even if it means you can't afford schools because the government bureaucracy has grown so big it sucks up all the tax dollars once spent on less important stuff. What this means from a practical standpoint is that it will be harder for clients who are in pro per to achieve a successful outcome at these hearings. And regardless of whether they have legal counsel or go alone to a hearing, they will need to make sure that all the evidence-the Subastance Use Assessment, the Request for Hearing, the information in the client's letters, and the testimony they provide at the hearing-is consistent. Understanding the importance of this consistency will also require lawyers to make sure they are familiar with the minutest details of the case. And it will mean more time spent in preparation than in the past if there is to be any hope of a positive outcome for the client. ---------- 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, May 15, 2013