The Big Issue - Your Problem is Likely to Remain Under Control
Okay, so you have your letters of support which helped prove the first issue, that your alcohol problem is under control. What's so hard about making that show that you have quit for good?
A lot, as it turns out. Remember, you have to prove that your alcohol problem is likely to remain under control. And to prove that, your evidence has to clear that hurdle of "clear and convincing evidence." That means your proof has to be pretty strong.
The good news is that some of that proof will have already been made. Remember that substance use evaluation we talked about earlier? There is a space there that I call the "$64,000.00 question." It is the one that calls for the evaluator's prognosis. It's titled, not surprisingly, "prognosis." In other words, the evaluator must give a specific prognosis, or prediction, of whether or not your alcohol problem will remain under control. And beyond anything else, that prognosis can absolutely cause your appeal to be lost, if it's not good enough, and otherwise supported by the rest of the evaluation. In other words, if you stumble here and the whole case is lost, period.
For all the talking, that prognosis boils down to ONE WORD. Whatever other language surrounds it, the prognosis for anyone's continued abstinence from alcohol can only be one of the following:
- Fair, or
If the prognosis section of the substance use evaluation does not contain one of those words, then the whole evaluation is flawed and your case is lost, period.
In terms of success, your evaluation must legally cause your appeal to lose if your prognosis is "poor." "fair" or "guarded" None of these is good enough to meet the "clear and convincing" evidence standard. Every one of these 3 is, therefore, a guaranteed loser.
A prognosis of "good" is pretty much a guaranteed winner if it is supported by other evidence. We'll get to that.
Surprisingly, a prognosis of "excellent" is not a guaranteed winner, and can actually be more of a handicap than a help. Most of the Secretary of State Administrative Hearing Section (AHS) hearing officers look at people with two or more drunk driving convictions as somewhat risky bets for complete lifetime sobriety.
Statistically speaking, relapse is big reality in the world of alcohol recovery. For many people in recovery, relapse was, or, unfortunately, will be, part of the process. Very few people present themselves as so far above the ordinary that a prognosis of "excellent" isn't a bit of an overstatement. That's the problem. If that prognosis, even made in good faith, is a bit of an "overstatement," then the Secretary of State looks at the rest of the evaluation as not factually exact or reliable enough to be the foundation for a winning case. While this might seem like hair-splitting, the last thing you want is to find that out when your appeal is denied and you have to wait a year to come back and try again.
This is not to say that some people do not deserve or win with a prognosis of "excellent." Quite a few do, but as the attorney, I must be on guard to make sure that such a prognosis is adequately supported by the other evidence in your case. This is one of those areas where all the descriptions in the world cannot explain something adequately. This is where years of experience come together to make the call.
People heavily involved in AA and who can prove it will have the easiest time getting their license back. But what about those who do not go to AA, or did go but found it wasn't for them?
Assume that you went through some court-ordered counseling, but for whatever reason didn't go to or continue going to AA. Your job is going to be a bit harder than the AA person, but it still can be done rather easily, especially if I'm involved. Most of my clients for whom I win (and remember, I Guarantee that I'll win) are NOT involved in AA. I do not favor having people who have managed their recovery without AA start to go to meetings all of a sudden, just to get some AA under their belt to "look good" for the license appeal. To do so is phony, wrong, and will be exposed by the hearing officer within minutes. If you have managed your sobriety without AA, then we simply have to prove the genuineness of that sobriety to the Secretary of State.
Proving a commitment to sobriety means understanding what sobriety really is.; If there's one thing I have learned in my 20 years, it's that these hearing officers who decide your appeal know AA, and the concepts and principles of sobriety better than anyone. You simply cannot fake this stuff. Even diehard AA people need help being able to articulate their relapse prevention strategy and which steps, beyond the 1st step, have had the greatest impact on their recovery. Beyond all this, however, the bottom line is that you have really quit drinking, all we have to do is tell the truth. For as complicated as this may sound, my job is to simplify it, and I do that well enough that I guarantee to win every case I take.
I know all about addiction, alcoholism, recovery and sobriety. Like a DAAD hearing officer, this is my job. This is my business. This is what I do, and read about, and talk about, and handle in court and in AHS hearings every day.
Years ago, I had a substance abuse counselor as my assistant.; She not only guided my early education into the principles and practices of recovery (I've since formalized that with post-graduate addiction studies), she took me to open AA meetings where I could here those principles discussed by the very people who worked them. She helped me understand, long before I undertook my own post-graduate education in addiction studies, that AA is not for everyone, and that most people can recover just fine without it. She made me not only learn this stuff, but understand it.
I learned all about the Jellinek Curve, and what's known as the Jellinek Chart. I know all about alcoholism as a progressive disease, and I understand that some people are just problem drinkers while others are "alcoholics," and what those differences are. I know the diagnostic criteria that separates an alcohol abuse from someone who is alcohol dependent.
I truly believe that in order to be a good license restoration lawyer, one has to be a student of recovery. How can I help someone formulate a plan to explain their recovery if I don't have a firm and solid understanding of the principles of recovery? And what is a master or any subject, really, other than a master student. The day you stop learning is the day you stop growing...
That's why I believe this area of legal practice is a specialty. You can't just be casually acquainted with this stuff, and you can't just do it once in a while. Either it's your bread and butter, or it's an occasional treat. For me, this is bread and butter stuff.
Knowing how to match those principles up with the evidentiary requirements of the AHS so that a person's recovery story can rise to the level of "clear and convincing evidence" is what this process is all about.
It is my job to guide you through this process and to know when you are ready to file for a hearing. In my office, this takes hours of our time, but the truth is that nothing worth having doesn't take some hard work to get, anyway.
In most cases, when the substance use evaluation has been satisfactorily done, the letters of support are good to go, and I feel you are otherwise prepared to answer the hearing officer's questions, and mine as well, then it's time to request your Hearing.
In a small number of cases, there is another third issue that becomes very important at the hearing. Only an analysis of your driving record determines whether or not it is relevant. Next, we'll address whether you even need to worry about proving this third thing: that you are "motivated to drive safely and within the law."