THE EXPERT WITNESS: It's later than you think

By Michael G. Brock
 
Lately, I have noticed an increase in driver license appeal cases where the time limit of 90 days between the beginning of the gathering of evidence and the submission of that evidence to the SOS Administrative Hearing Section has expired. As a result, the evaluation and the drug screen need to be redone, if, as is usually the case, this is the first evidence the client has accumulated.  There are many reasons for this increase, some of which are within my control or the control of the attorney handling the appeal, and some of which are not.

The first and most obvious reason for the problem is the increasing complexity of the process.  The evaluation must be done, and a urine sample taken and sent to the lab, where it is tested for ten drugs and at least two integrity variables that confirm the sample is valid.  The client must obtain 3-6 letters which are consistent with the evidence supplied in the evaluation, and must fill out form 257, which also must be consistent with the evidence supplied in the evaluation.

The attorney must review all the evidence, and request corrections if any evidence does not line up with the rest of the evidence (eval, 257, and letters), or with the DMV record, or with prior evaluations done by myself or someone else for this client, something the client said at a hearing, or different reports the client has given at different hearings, or if the evidence fails to address a concern expressed by a hearing officer in issuing an approval or denial of license for this client at a previous hearing.  These conditions offer multiple variables in any combination whereby things can go wrong.

When clients call me, they typically ask what they need to bring to the interview.  I tell them first, payment by cash, credit or debit card.  I prefer not to take checks because a check can bounce for unforeseen reasons.  A wealthy client recently bounced a check because he was going through a divorce and opposing counsel got an ex-parte order freezing his bank accounts, though he was also ordered to maintain the status quo.  Neat trick if you can maintain the status quo without access to funds.  No problem, he paid me, but I won’t release a report until the check clears.  Checks
promised after the report is issued cannot be relied upon.

The other things I ask for are the dates of arrest (easier for clients to remember than the dates of conviction) for all substance related offenses, and the reasons for previous denials, preferably with the hearing officer’s letter.  This is not a lot to ask, but what I receive from clients is often sketchy, resulting in an evaluation that has to be corrected after the fact.  This is a waste of everyone’s time.  If you are sending me a client, it would be very helpful to make sure I get this information before or at the time of the hearing.  The more accurate this information, the more accurate the timeline of events, and the more credible your client’s presentation.  The more credible your client, the greater likelihood of success.

Another benefit of accurate information is that I am less prone to make a mistake while trying to filter out which of three different last arrest or last drink dates the client has given me is the most probable, and the less likely I am to report that he had already been sober for three years when he got his last DUI.  I allot 1.5 hrs. for the evaluation, which should be plenty of time and is more than most evaluators, but if the client is trying to determine when he has his last drink by remembering when his ex-brother-in-law married his third wife, it drags out the process, and, frankly, is confusing.  “I left my DMV record at home because I couldn’t see why you’d need it, and I left my ID in the car and my sister went to get a burger,” are also not helpful.  Don’t assume your clients will see the obvious.  Tell them and repeat it.  Then tell them again.

I tell clients not to do letters or the 257 before they see me because they often have to be redone.  If they have the letters, they often don’t have the last drink or drug use date on them because the information provided them by the state is not clear.  It asks them for the “last time the person had knowledge of you using alcohol or a controlled substance.”  That could reasonably be construed to be never if the person didn’t know you when you drank.  However, the hearing officer wants the last drink date and the letter is not helpful if it doesn’t have it.  Instead of telling clients to redo an already notarized letter, I tell them to have the letter writer add the last drink or drug use date at the bottom and sign it.  Hopefully this is acceptable.  I haven’t had anyone tell me it isn’t, and it makes it less likely we will run out of time.  If the 257 doesn’t line up I give them another blank one and tell them to do it with their attorney with my eval in front of them.

If your client is positive for a prescription drug he has to have a DI4P from his treating physician.  He has to be pushy to get it in a timely fashion.  If his creatinine level is below 20, the drug screen is not considered valid and must be redone—more time lost.  The client has to arrange a ride to my office to take another drug screen.  Tell them not to drink a lot of water; we need concentrated urine.

I realize that a lot of the client’s information is coming in piecemeal to you, and that you have other clients and other commitments, including court appearances.  Clients drag their feet.  The people who write their letters drag their feet.  The client might get the information to you a week before the deadline and you are in court that week. Anything that can go wrong does go wrong.  It turns out that 90 days is not a long time, so you can’t allow yourself to think that it is.  You can’t allow your client to think that it is.  If it is out of date, it has to be redone.  I have to sit down with the client to update and I will charge for the time, plus the cost of the drug screen.  I appreciate your business, but I have to charge for my time unless it is my error.

It’s also helpful to remind your clients that telling the hearing officer, “I wasn’t that bad” and “Shut up and gimme my license back” are not winning strategies.  Most people who lose their appeals beat themselves.  If everyone handles what is under their control, the appeals are usually successful, but being dependent on the kindness of strangers is not wise.  Hearing officers have other concerns and rightly so.  They keep refining the process and we have to keep up with the changes.  In the words of Jerry McGuire, “Help me help you.”  Keep after your clients or they will make you late.  Bug me ahead of time if you need something done.  I’m good at getting back to you in a timely way; I do not leave things until the last minute.

I like this work.  I like helping my clients become fully-functioning adults.  Most of them are sober and deserving of the chance.  There will always be those who beat themselves; we can’t help everyone, but we can do our best for those who really want our help and are willing to do what is necessary to get their lives back.  By helping them we help our society.  It’s a win-win.  Let’s do the best we can to make it happen.

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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.