March 2013 Archives

March 29, 2013

Driver's License Appeals - Problems with the Substance Abuse Evaluation - Part 3

In Part 1 of this series, we began our examination of the problems within a Substance Abuse Evaluation that will cause a License Appeal to fail. We looked at how even simple, little things like a name and address must be done correctly. After all, if these small details aren't correct, what does that say about the really important stuff? We then went on to review how important it is to accurately list all of your DUI's, your BAC results (if you can), any other convictions you have, and your treatment and support group (AA) history. I also noted that most of my Clients DO NOT currently attend AA.

In Part 2, we focused on the important role of the alcohol assessment test, and how the result of that test helps "suggest" a diagnosis. We also saw that a very common problem is the DAAD's over-reliance on that test result in determining a proper diagnosis. From there, we looked at how issues with a urine screen can create the appearance of problems that aren't really there, and how a person's prior periods of abstinence can similarly give rise to the appearance of being a chronic "quitter" who just can't stay "quit."

no_problem-LRG 1.2.jpgIn this final installment, we'll tackle the most important section of the Substance Abuse Evaluation, the prognosis. It only makes sense that the Evaluator's educated prediction about a person's ability to remain Sober is "the big cheese" of the whole Evaluation process. We will also see how the final section of the Evaluation, the Continuum of Care Recommendation, can upset the whole apple cart. While I'll go on to introduce this section as "last, but not least," it is precisely because this section is often given the least amount of consideration by an Evaluator that it can tank an otherwise good Evaluation.

Everything we've covered thus far in both Parts 1 and 2 of this article eventually and inevitably leads to the ultimate goal of the Substance Abuse Evaluation - the Prognosis. At its simplest, this is the considered and professional opinion of the Evaluator about whether the person's alcohol problem is "likely to remain under control." This is really the answer to the $64,000 question, so to speak. If there is any "it all comes down to this" aspect of the License Appeal process, this is it.

Here again, what sounds easy at first gets rather complicated. Over the years, a number of Clinics and Evaluators made a quick, albeit short-lived fortune writing up glowing Evaluations that gave only the best prognoses for anyone willing to pay their Fee. The DAAD caught onto this with lightening speed. Those operations have come and gone like yesterday's news.

Even with those concerns part of ancient history, there are plenty of other "prognosis" issues that arise with enough regularity to be considered relatively common. By Law, a prognosis must at least be "good." That means that with a prognosis of "poor," "guarded" or "fair," a License Restoration Appeal MUST be denied. To put it another way, you cannot win a License Appeal with anything less than a "good" prognosis. Many of those who ultimately hire me have already tried a License Appeal before and lost. Part of what I need them to bring in, when we meet, is the paperwork from any prior Appeal(s). It's not that I want to show off (okay, maybe I do a little bit...), but often enough, I'll pick up their prior Evaluation first. Within a few seconds of beginning to read it, and without ever having looked at their Denial order, I can tell them why they lost. When I see an Evaluation, for example, with the "fair" box checked in the prognosis section, I can tell the person that such a prognosis figured prominently in the reason for their prior denial. This is always met with an agreeing shake of the head, and then a question about why their previous Evaluator or Lawyer didn't know this.

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March 25, 2013

Driver's License Appeals - Problems with the Substance Abuse Evaluation - Part 2

In Part 1 of this article, we began our examination of the things that can go wrong with the Substance Abuse Evaluation form that must be filed to begin a License Appeal, and how some of these errors can cause the Appeal to be denied without the DAAD ever having to consider the more important issues of whether the person's alcohol problem is "under control," meaning the person has stopped drinking, "and likely to remain under control," meaning the person is committed to and has the necessary tools to permanently remain alcohol-free.

We covered the proper listing of a person's biographical data, as well as their alcohol education, counseling and support group history. Here, in this second installment, we'll begin by examining the next part of the Evaluation form. This is called the "Testing Instrument," and refers to the written alcohol screening test a person takes as part of the Evaluation. This test is used to help come up with a diagnosis of a person's drinking problem. We're going to see how, in the Clinical world, this test is only part of the diagnostic process, and how the DAAD often places far too much emphasis upon this test, sometimes to the point of using the test result as the sole criteria for reaching a diagnosis, thereby undermining the role of the Evaluator and reaching an Clinically deficient conclusion.

NOPROB 1.2.jpgOne of the biggest problems that can cause an Appeal to tank involves the administration and interpretation of the written alcohol-screening test (the "testing instrument") used by the Evaluator. This is really a tricky subject. Only people with proper training and credentials should administer and interpret one of these tests. Some tests, however, are of the "over the counter" variety, and can be "scored" by anyone with a scoring key. This happens all the time when a person takes such a test as part of their Probation screening in a DUI case, before the Sentencing. Almost without exception, Probation Officers have no formal Clinical training or certification or advanced degree that allows them to do anything more than take a garden variety test you can get anywhere on the internet, thrust it in front of someone, and then add up his or her score and compare it to the provided scoring key. On these tests, a person's "score" suggests a diagnosis regarding their alcohol use. Such a "suggestion" related to a score on a written test is hardly any kind of proper Clinical "diagnosis," but the Court system, and, by extension, the DAAD overlooks this.

To digress for a moment, this is a subject that is very important to me. Beyond just being "interested" in it, I am enrolled and involved in post-graduate addiction studies at the University level. Imagine how I felt when, as part of my Clinical matriculation, it was presented, as a matter of fact, that the Judicial system in the U.S. is between 10 to 20 years behind understanding, much less using current Clinical protocols. I was embarrassed for my profession, although relieved to find out that everyone was just behind the curve, and not simply stupid...

This has meaning for the DAAD. It means that the best Clinical understanding most Hearing Officers have, particularly as non-Clinicians, is not only frighteningly incomplete, but anywhere from a decade or two out of date, at that. Yet these same people will examine a Substance Abuse Evaluation completed by a credentialed, licensed Clinician and essentially second-guess it. This means that in a world where streaming hi-def video is already making Blu-Ray obsolete, the DAAD is just learning how to work a VHS videotape machine. And while that sounds funny, it's anything but that when YOUR License Appeal is on the line.

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March 22, 2013

Driver's License Appeals - Problems with the Substance Abuse Evaluation - Part 1

Michigan Driver's License Restoration Appeals are complex. They involve what I call a "million little rules." Miss one of these simple requirements, and your case will be rejected right out of hand. The frustration here is that many License Appeals lose without any consideration being given to whether the person has really quit drinking, and has the commitment and tools to remain alcohol-free. That determination is really at the heart of a License Appeal. Within the various sections of my website and blog, I have made detailed examinations of those two critical issues from every conceivable angle. In this article, I want to take a step back from the "meat and potatoes" of a License Appeal and look at some of the other, more technical (one might say "clerical") requirements, that, if not met, will still completely derail a License Restoration case. We'll limit our focus in these three installments to the Substance Abuse Evaluation that must be filed with the State to being a License Appeal.

The Secretary of State's Driver Assessment and Appeal Division (DAAD) operates under a very strict set of rules. I have written a whole numerous articles detailing how those rules work. One aspect that helps to explain why so many people who try a License Appeal on their own, or use some Lawyer who claims to "do" License Restorations and then loses, is the opening sentence of the ultra-important Rule 13:

"The hearing officer shall NOT order that a license be issued, unless the petitioner proves, by clear and convincing evidence, all of the following...(emphasis added)."
No Problem Alf 1.2.pngThis is a negative mandate. Specifically, it means that the Hearing Officers are instructed more to look for a reason to deny an Appeal, rather than a reason or reasons to grant it. The Hearing Officers are expected to review the paperwork in any case with a critical eye, and, make no mistake, they do just that.

A License Appeal begins by filing certain paperwork with the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). Required amongst those documents is a Substance Abuse Evaluation(please note that a new form will be required by the DAAD as of April 1, 2013). This is usually the first thing read by a Hearing Officer, and is really the foundation of any License Appeal. Of course, the first thing the Evaluation must properly list is the name, address, date of birth and Driver's License number of the person who submits it. All it takes in the busy world in which we live is for an Evaluator to be working on his or her computer, and then turn away for a moment, perhaps to take a phone call, and then overlook verifying a person's Driver's License number or correct address.

A real life example of the mess this can create occurs if a person, who now lives out of state, comes in for an Evaluation, bringing a driving record that lists their former Michigan address. One moment's distraction can result in the evaluator using the address on the driving record (this is usually the right address, for most people, after all) to identify the person being evaluated. This, in turn, can create a problem at the Hearing, when the now out-of-state person requests a Clearance of the Michigan hold on his or her driving record rather than the Restoration of a Michigan License, and the Hearing Officer points out that the Evaluation provides a Michigan address, and questions the person's true residency. While this doesn't sound like a big deal, the inevitable next question from the Hearing Officer is something like "what else isn't accurate or true in this Evaluation? Didn't you read it?"

Another common but simple mistake that will cause an Appeal to be denied right out of the gate is not listing all of one's DUI convictions. Sometimes, really old convictions don't show up on the driving record a person gets from the Secretary of State. Other times, out-of-state convictions don't show up, or at least not at first. In fact, sometimes, convictions show up years later. The workaround here is really simple: Tell the truth. List every DUI conviction you have. In cases where those convictions are really old, and/or out of state, disclose them with as much, or as little, specificity as you can. This is where I help. I have my own "Substance Abuse Evaluation Checklist" that I complete as I meet with my Client for about 3 hours BEFORE he or she ever has an Evaluation completed. I do this to make sure there are no problems with the Evaluation, and that nothing is left out or not properly explained or presented to the Evaluator. My Client gives this Checklist to the Evaluator. This way, I have no worries. I can rest assured that I've clarified, disclosed or explained everything.

Continue reading "Driver's License Appeals - Problems with the Substance Abuse Evaluation - Part 1" »

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March 18, 2013

The Role of the Hearing Officer in a Michigan License Appeal

It has been a while since I wrote about the various DAAD (Driver Assessment and Appeal Division) Hearing Officers who decide Driver's License Restoration Appeals for the Michigan Secretary of State. Within the context of any given Michigan License Appeal, the Hearing Officer is really the most important person in the world, at least while your file is on his or her desk. This article will examine, in general terms, the role of the Hearing Officer and some of the more important differences and similarities amongst them.

In a previous, 2-part article, I took a sort of "anonymous" look at the 5 Hearing Officers at the Livonia branch of the DAAD, where I have all of my License Appeals heard. The same 5 Hearing Officers are still there, and nothing has changed in the time since I published those installments, so there is really nothing to update about them. Yet the whole concept of the role of the Hearing Officer is so critical to how I prepare my cases (and very relevant to why I provide a win Guarantee) that it needs to be reviewed from time to time.

Mystery Man 1.3.jpgIt's easy to get caught up in the fixed, almost mechanical requirements of a Michigan Driver's License Appeal. The process starts with a Substance Abuse Evaluation. I start by spending 3 hours with a new Client just to prepare them to undergo that Evaluation. Letters of Support need to be written, and I spend a lot of time "correcting" and editing them. When all of this paperwork has been completed and reviewed and made "just right," it's filed with the State and a Hearing date is eventually given. Part of the notification of the Hearing date is the assignment of the case to a particular Hearing Officer. The Hearing Officer is the opposite of fixed, or mechanical. Different Hearing Officers have different backgrounds, concerns, life experiences and perspectives that influence how they evaluate the evidence in and ultimately decide a License Appeal. The Hearing Officer is, in that sense, a fluid variable in a License Appeal.

To complicate that even more, you don't know who this "fluid variable" in your License Appeal case will be until AFTER it's filed. My job would be much easier if I knew, in advance, to which Hearing Officer any particular case would be assigned. Precisely because the assignment of cases is random (and that really is the only way to make it fair), I have to consider the idiosyncrasies of all of the 5 Hearing Officers before whom I have my cases heard as I prepare each one.

This means, for example, that if a person has used any potentially addictive or mind or mood altering medication after the date of their last drink, I have to prepare the case as if it might go in front of the one Hearing Officer most concerned about that issue (identified as "The Doctor" in the previous 2-part installment about Hearing Officers) and before whom every "I" must be dotted and every "t" crossed. Not doing so could be a fatal mistake, even though there is an 80% chance the case may be assigned to one of the other 4 Hearing Officers. This means I have to get the proper Doctor's letter before the case is ever filed, and make sure the Evaluator receives a copy so that she can include its analysis in her Evaluation.

Accordingly, considerations about the Hearing Officer are relevant even before the case is ever assigned to one. This is why I have all of my cases scheduled in Livonia, because at least I only have to keep a handle on 5, albeit 5 very distinct personalities. Fortunately, regular and repeat experience in hundreds upon hundreds of cases before them has exposed me to the gamut of how they see things. Even so, as each case I handle has its own story, or theme, I have to review it in light of the way each of the 5 different Hearing Officers will consider it. This means I have to make allowances for and prepare for certain things that there is only a 1 out of 5 chance that we'll actually have to deal with. To put it another way, I have to take into account things that there is an 80% chance will never come up. But doing things properly means doing just that...

Continue reading "The Role of the Hearing Officer in a Michigan License Appeal" »

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March 15, 2013

Medical Marijuana means Losing your License Appeal

A number of recent inquiries have thrust the whole issue of a medical marijuana card squarely within the context of a Driver's License Restoration Appeal. On top of that, a few of the Hearing Officers before whom I appear have recently been asking if a person has a medical marijuana card, or has ever applied for one. Medical marijuana laws do conflict with other laws, and the resolution of such conflicts is still unsettled in many of those situations. However, unless and until there is ever some hard and fast ruling to the contrary from one of Michigan's Appellate Courts regarding License Appeals and medical marijuana, don't expect to see the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) approving any License Appeals for someone with a medical marijuana card.

For the most part, the underlying reasons for this should be rather obvious. In an earlier article about Sobriety, I pointed out that people who are truly sober understand the meaning of "Sobriety," whereas people who don't really understand the meaning of "Sobriety" will mistakenly equate it with simply not being drunk, or not drinking to extremes. "Sobriety," in the sense we're discussing here, is more a state, or state of mind, than just the absence of intoxication. In this way, "Sobriety" implies that a person previously had a problem with alcohol has decided to give it up for good.

MedPot 1.2.jpgBecause the language we're using here is precise, we must differentiate the general concept of "abstinence" from the more specific meaning of "Sobriety." Abstinence means to abstain. If we're talking about someone who has had a struggle with alcohol or drugs, abstinence simply means, "not using." Thus, a person can be put in Jail, meaning they've been forcibly separated from the ability to drink alcohol for a given period of time. Even if they desperately want a drink, and count the days until they're let out and can drink again, that period of time during which they were in Jail and could not drink is a period of abstinence.

Such a period without alcohol is NOT, however, a period of Sobriety. This distinction is a good litmus test for the reader's understanding of "Sobriety." If you understand the above example, even if more by instinct than anything else, then you have a concept of the real meaning of Sobriety. In that sense, Sobriety requires abstinence, but abstinence does not require Sobriety. In order to be a real candidate to win a Driver's License Restoration Appeal, this should all make perfect sense. If it does not, then we've got some work to do...

Part and parcel of the process of becoming sober means acquiring a basic understanding of certain notions about alcohol (or drug) use. When a person's use of alcohol or drugs becomes so problematic that they have to separate themselves from such use, they learn that they must give up using all potentially addictive and mind or mood altering substances. It is a given that if the alcoholic is separated from his booze, but has access to something like Xanax, he or she will soon enough use it as a substitute. The same thing applies when a person with a drug problem is separated from drugs, but has alcohol available. A person with a drug problem will always be told that he or she must not only abstain from his or her substance of choice, but also not drink alcohol, either. In countless cases, such individuals have replied that there is nothing to worry about, because they never liked alcohol anyway, only to wind up transferring their addiction to alcohol as a substitute, and usually in a relatively short period of time.

The bottom line is that once a person develops a problem with ANY substance, be it either alcohol or drugs, getting better, as in recovering, necessarily involves abstaining from the use of any other potentially addictive or mind or mood altering drugs. You can't "get sober" by giving up getting drunk, only to start getting high instead, nor can you "get clean" by giving up getting high, only to start getting drunk, instead. This is pretty basic recovery stuff. Anyone who has spent any time in any kind of outpatient treatment program or around the tables of AA should know this. And that means that if a person knows this, they know that marijuana (or any potentially addictive or mind or mood altering drug) should be avoided at all costs, unless absolutely medically necessary and without suitable alternative. Thus, a person undergoing a brutal cycle of chemotherapy may have a much better "medically necessary" or "without suitable alternative" argument for using marijuana than someone who claims chronic back pain.

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March 11, 2013

Getting your Driver's License back in Michigan after Multiple DUI's

Being a Michigan Driver's License Restoration Lawyer generally means that I Restore the Driver's License for someone who has had it Revoked for multiple DUI convictions. In many cases, the person has moved out of Michigan and cannot obtain (or renew) an out-of-state License. Whether the person lives in Michigan or not, I can help if the person cannot get a License because of 2 or more Drunk Driving convictions. Of course, it is also necessary that the person has quit drinking, as well. Sobriety is not optional.

The formal description of this kind of legal work is called "License Restoration." Technically, I Restore a Driver's License that has been Revoked as a consequence of multiple DUI's. This is a fairly narrow and specialized field. Essentially, if you lost your License after 2 or more DUI cases, have quit drinking, and need to get back on the road, I'm they guy.

Deb License.jpgUnfortunately, way too many people see the words "Driver's License" and "Restoration" and think I'm the general "fix-it" guy for any kind of License problem. While there are some situations that I fix above and beyond multiple DUI Revocations, there are 2 situations that I never touch:

1. If your License has been Suspended because you owe money to either the State or a Court, I cannot help. Your License is being held until you pay the money you owe. It's that simple. Some people will email me, asking for advice, or if there is anything I can do. Here is the complete extent of what I can advise: pay the money. If you don't have it, set up a payment plan. If you can't do that for whatever reason, then get the money. If you can't get the money, then you're out of luck. Even if there was something I could do (and there isn't), how would someone with no money pay for it, anyway?

There are countless reasons why a person can wind up owing money to a Court, or to the State. Believe me, I've had the longest emails detailing every conceivable screw up and mistake justifying why a person doesn't owe what they supposedly do. While I know it can seem unfair, I can't help. I only handle Revocations for multiple DUI's, or Suspensions from Drug cases or Breath Test Refusals. If the basis for your not having a License has anything to do with owing money, you'll have to work that out on your own. Thus, if your License has been taken, or is being held because you owe money, the ONLY thing you can do to get it back is pay the money.

2. If your License has been taken away for multiple DUI's, but you have not quit drinking, I cannot help you. I GUARANTEE that I'll win any License Restoration case I take, but a necessary prerequisite to my taking a case is that a person has really quit drinking. This is not a "technical" thing, either; if you still drink, however infrequently you may claim, or you still think that you can have a drink every once in a while, then you haven't truly quit drinking. Winning a License Appeal requires proving Sobriety (this has nothing to do with AA, and most of my Clients don't go to AA), and that means demonstrating that you have made the transition from drinker to non-drinker and intend to remain alcohol-free.

Continue reading "Getting your Driver's License back in Michigan after Multiple DUI's" »

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March 8, 2013

Probation in a Detroit-area DUI

In my role as a Metro-Detroit DUI Lawyer, I answer every conceivable kind of question about the DUI process. One question that virtually everyone asks is about Probation. I'm asked everything from what "Probation" means, to what it entails, whether or not I can help my Client avoid it, and if any kind of exception can be made to accommodate some circumstance a person facing a DUI has. This article will be a brief, minimalist summary of what Probation means in a DUI case.

Within the more than 120 DUI articles I have on my Blog, some make a rather detailed examination of the whole Probation process, requiring 2 installments to do so adequately. This article will be the polar opposite of that. If I've had to learn anything the hard way, it's that not everyone is interested in the textbook treatment and microscopic analysis that defines most of my earlier articles.

Probation 1.3.jpgProbation is, first and foremost, an alternative to incarceration. In a DUI case, it is given as an alternative to Jail. To be clear, a person can be put in Jail for a few days and then be let out on Probation, but in most cases, and in this article, we'll be referring to Probation in lieu of Jail. Probation comes in 2 major types: Reporting, and Non-Reporting. You don't even have to know much about Probation to know that Non-Reporting sounds better, and it is; everyone wants Non-Reporting Probation. Probation is usually given in terms of either 12 months (most common), 18 months (more common in Oakland County), or 24 months (usually handed out in 2nd Offense cases).

Non-Reporting Probation simply means that you don't have to show up and report, in-person, to a Probation Officer. Sometimes (although rarely), it can mean that a person has to write-in periodically and either complete a form, or in some other way communicate with their Probation Officer, who is often just called the "P.O."

Here's the real skinny: In a DUI case, Non-Reporting Probation is a possibility in certain Courts in Macomb and Wayne Counties, but will never be given in Oakland County. If you have a DUI in any Court in Oakland County, you are more likely to win the Powerball Lottery AND the Publisher's Clearing House Sweepstakes on the same day than you are to get Non-Reporting Probation.

Reporting Probation is far more common. Reporting Probation requires that you go to the Probation Department (usually in the Court where your case was heard) and meet with a Probation Officer. Most of the time, this is done once a month, although a person can be required to report more or less often than that. Part and parcel of Reporting is that you fill out a form that asks if anything has changed since your last Report. Here, you're supposed in indicate if you've moved, changed jobs, or anything like that. You're also asked if you've had ANY Police contact.

The defining element of Probation is "Conditions." Probation is really a specific period of time during which you must not do certain things, and very often must do others. This is really no different that being hired for a job for a probationary period. The company wants to make sure you do certain things, like meet quotas, and NOT do others, like show up late, or miss time. In a DUI case, the standard conditions require that you pick up no new Criminal Offenses, and that you do not drink or use any kind of drugs. This is often backed up by some kind of breath or urine testing, to insure compliance.

Continue reading "Probation in a Detroit-area DUI" »

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March 4, 2013

Avoiding the big risk in a Detroit-area DUI case - Part 2

In Part 1 of this article, we began to sketch out how a person facing a 1st Offense DUI charge risks being found to have, or to develop, an alcohol problem. We'll continue that examination is this 2nd part, and we'll look at some specific examples of how my knowledge of alcohol and addiction issues can help minimize the negative legal consequences a 1st Offense DUI Client faces in Court.

The study of alcoholism is a highly specialized field. Understanding the diagnostic testing procedure involves much more than just thrusting a multiple-choice test in front of someone and then reviewing their answers next to the scoring key. The upshot of delegating the responsibility of determining if a person has an alcohol problem, or is at risk to develop one, to a Probation Officer is that a LOT of mistakes are made. I know. I catch them all the time.

Risk 1.2.pngPerhaps the most common mistake made by a Probation Officer screening someone in a 1st Offense DUI case is that, although the person tests out as NOT being at risk for an alcohol problem, and because the Probation Officer, who has zero training in the actual clinical criteria for assessing the existence of such a problem, will use their "gut" and include something like this in the Sentencing Recommendation: "The Defendant's answers to the alcohol screening questionnaire coupled with his high BAC score suggests a potential drinking problem and indicates that Counseling would be beneficial," or "The Defendant's responses on the alcohol evaluation as well as the seriousness of this Offense indicate that Intensive Out-patient Counseling would be helpful in helping the Defendant to gain an insight into his drinking." This kind of generic-speak is absolutely non-specific enough to sound clinical, and almost profound.

But it isn't. The fact is, things like a person's BAC score are NOT part of any diagnostic criteria used to assess whether or not they have an alcohol problem. Nor is the "seriousness" of any particular DUI Offense. In fact, the "diagnostic criteria" (set forth in what is know as the "Diagnostic and Statistical Manual," or "DSM," and published by the American Psychiatric Association) speaks only of "recurrent" legal problems. It does not, as a matter of fact, differentiate a single, low BAC DUI from a single, four-times the legal limit high BAC DUI causing death. In fact, 2 DUI'S register as "recurrent," whereas a single DUI that kills a whole family does not. It's that simple, or at least it should be. This is the kind of stuff I have to deflect every day.

It seems to me, given that this affects exactly what will happen to you, your Lawyer should have expertise in this field. If not, then you have effectively surrendered control over your fate to non-experts "playing" in a field in which they have no credentials. You should not have to let someone without the requisite formal training in Substance Abuse issues decide whether or not you have, or are at risk to develop a drinking problem, and make determinations about what kind of help you do (or don't) need, yet the "system" is set up to do just that. I can help prevent that.

This problem is compounded because the Probation Officer who administers the alcohol-screening test and does the interview thinks he or she is an expert, despite the indisputable FACT that their experience with alcohol issues is limited exclusively to Criminal and DUI cases. This gives them a Criminal, and not a clinical perspective. On the one hand, while Probation Officers really have no business taking anything except a Criminal perspective, the fact that the Courts delegate the responsibility for alcohol screening to them requires them to at least "play" clinician.

Continue reading "Avoiding the big risk in a Detroit-area DUI case - Part 2" »

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March 1, 2013

Avoiding the big risk in a Detroit-area DUI case - Part 1

The real risk in a 1st Offense Drunk Driving case is that a person has (or the Court, at least, concludes a person has) a drinking problem that is finally interfering with normal life functions, like driving. From the point of view of a Judge, and therefore extremely relevant to what I do every day as a Michigan DUI Lawyer, every single 1st Offense DUI is either a one-shot, out-of-character incident for someone, or it's just the first of more to come. When you think about it for a moment, that concern is relevant to every DUI case that has ever been brought. To put it another way, every single person facing a 2nd or 3rd DUI charge had to have had a 1st Offense, as well.

It goes without saying that absolutely everyone ever Arrested for a 1st DUI says, "it won't happen again." Moreover, absolutely everyone who says that means it at the time they say it. Do you really think there's anyone who ever really intended to get Arrested for another DUI? Of course not! Therefore, the measurement of the likelihood that a person will be a repeat Offender, or not, has nothing to do with how much they insist, "It won't happen again."

gamblingwiththedevil 1.2.gifThe most effective (and perhaps only) way to measure the risk that a person will pick up another DUI is to assess their relationship to alcohol. Part of the whole problem with DUI cases is that, by far, most people who face this charge are not "Criminals." My Practice is a good example. I am a higher-end DUI Lawyer; I don't compete with the "lowball" cut-rate Lawyers, and I offer a degree of service they don't even know exists. Accordingly, my Clients are far more "high end" people. I represent Professionals in all fields, and absolutely none of my DUI Clients is a risk to commit something like an armed robbery, an assault, or to steal a car. My Clients may technically be facing a Criminal charge, but they are not Criminals.

We all know, or should know, at least, that one's status as being a law-abiding, taxpaying citizen is not exempt from the reaches of a drinking problem, and the incidence of problematic drinking amongst those people ever Arrested for Drunk Driving is statistically MUCH higher than it is for the population at large. This explains why, depending on the Court system in which your case is pending, you might be required to "test" for alcohol to enforce a "no drinking" condition of your Bond, or release from Jail. Unlike crimes driven by drug addiction, poverty of other types of desperation, Drunk Driving cuts evenly across the most highly-educated and high-income brackets. In fact, you can't be that destitute in the first place to have access to a car....

This means that a sitting Judge has to look past the SES (socio-economic status) of anyone facing a DUI, and really doesn't have to waste much time determining if a person is a "Criminal" or not. Whether the person before them earns their living digging ditches or doing heart-bypass surgery, the first concern of the Court is whether this 1st DUI represents a truly isolated incident, or is just the proverbial "tip of the iceberg." And given society's growing (if not media-fed) preoccupation with Drunk Driving, and the fact that being a Judge who is known as "tough" on Drunk Driving presents NO problem at election time (who'd vote for the candidate that's "easy," or "lenient," or "not as tough as the other guy" on DUI Drivers?), we've produced a recipe that sets anyone facing a DUI charge up for a trip through the meat grinder.

In a perfect world, the determination that a person either does or does not present a risk for a drinking problem would be made by someone with actual credentials to do that, like a bona-fide Substance Abuse Counselor. In the real world, a Probation Officer from the Court makes that determination. The Probation Officer is tasked with administering (and scoring) a legally required written test, called an alcohol assessment. Leaving this to a Probation Officer is not a good idea, and I'll address it in full detail sometime soon in another article. For now, I can at least identify a few valid concerns about having a Probation Officer do a Substance Abuse Counselor's work.

Continue reading "Avoiding the big risk in a Detroit-area DUI case - Part 1" »

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