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

March 4, 2013

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.

This conundrum didn't always exist, because, years ago, some Courts would send DUI Driver's to an actual Substance Abuse Clinic to have their alcohol assessment done, and then had the rest of the Pre-Sentence Investigation completed by the Probation Officer. It just became easier, and more cost effective, to have the Probation Officer have the Defendant fill out a written test, score it, and handle the whole PSI in one clean, easy step. The better method of sending someone to an actual Substance Abuse Counselor in order to get a proper evaluation is still done in many Circuit Court, 3rd Offense Felony DUI cases. Of course, in a 3rd Offense Felony case, there is little question about the person's drinking problem, so that provides no help to someone facing a 1st (or even 2nd Offense) Misdemeanor DUI case.

The bottom line, though, is that "assessing" whether a person has an alcohol problem, or even the potential to develop one, requires a lot of clinical knowledge. It requires a clinical interview and the administration of a written test that must then be interpreted in light of all the information gathered. The only thing a Probation Officer does that even resembles any of this is administer a written alcohol assessment. Instead of using the result of that assessment in conjunction with all the other necessary information needed to arrive at a sound clinical diagnosis, however, the Probation Officer can only "score" the test (this, as we noted, means the Probation Officer is pretty much limited to an "over the counter" quality test to begin with) and then use that score AS the diagnosis, instead of properly using it as one part of the larger assessment process to arrive at a diagnosis.

This is where I can help a lot. This fundamentally unsound process frequently results in a Probation Officer Recommending that my Client enroll in Counseling, or start attending AA, basing such a Recommendation on faulty reasoning ("the Defendant's responses on the alcohol screening test, coupled with his high BAC results and the seriousness of this Offense indicate that Intensive Outpatient Counseling with AA attendance at least 2 times per week should be required"). When this happens, I have to point out to the Judge that my Client's actual responses on the screening test clearly DO NOT indicate any problem (and I'll have made sure of those responses beforehand) and that the other "criteria" relied upon by the Probation Officer (i.e., "high BAC" and "seriousness of the Offense") are NOT actual diagnostic criteria, and need to be discounted and excluded from any such consideration. In other words, I have to protect my Client from getting stuck with all kinds of Probationary Conditions, or "stuff" he or she doesn't need (but will have to make time to attend and will wind up paying for).

Because I can cite the specific clinical standards used to reach a diagnosis of alcohol abuse or dependence, and because I understand the whole diagnostic process from the Clinicians point of view, I leave the Judge with no choice but agree that something isn't right. Either that, or face getting reversed on Appeal. The result has been that I've had Judges offer to allow my Client to have another alcohol assessment done at an outside agency. Of course, I agree to this, and my Client thereafter dutifully shows up at the Office of a real Counselor, takes an alcohol assessment test, does very well upon it, and avoids all the Counseling and AA the Probation Officer was about to inflict upon them.

About a week before writing of this article, I was in Court with a young woman who was facing her first DUI. She had blown over a .20 on the Breathalyzer. When we reviewed the Probation Department's Sentencing Recommendation, we saw that the Probation Officer had recommended that she attend at least 2 AA meetings per month to learn about healthier lifestyle choices and Sober living. This, of course, was no doubt included in the Recommendation because of her high BAC. She had been thoroughly prepared for the alcohol assessment test and had done well on it. This meant that, as is so often the case, she had shown NO indications of a drinking problem, or even a potential problem beyond just having blown really high at the Police Station.

Had I not been her Lawyer, she might have wound up getting stuck with that AA. I not only explained to the Judge that there was no clinical basis for such a recommendation, I reminded the Judge that AA is a support group for people who express a desire to stop drinking. AA expressly notes that, "the only requirement for membership is a desire to stop drinking." It is NOT a spectator sport. In my other role as a Driver's License Restoration Lawyer whose entire Client base is demonstrably Sober, I have heard again and again about the chilling effect it has on an AA meeting for those who show up, ready to open up and discuss their deepest problems, to have some "spectator" sitting there, who doesn't want to be there, but has been Ordered to watch. I told the Judge that this recommendation was not just wrong, it was irresponsible, and showed a frightening lack of knowledge about alcohol problems and recovery from them. I was diplomatic, although not too gentle in my response, and the Judge wholeheartedly agreed.

I could not have made this argument, however, if I didn't have the specific knowledge that I do about alcoholism and addiction. Had my expertise been in the workings of the Breathalzyer machine, I would have been unable to help my Client. In a case like this, I have to, as the Lawyer, step up as the expert, as well. I cannot stand there like a shrinking violet and ask the Judge "do you think, maybe, that it might be that AA could be a little too much?" Nor can I present my knowledge and training as anything other than superior. I couldn't just "suggest" to the Judge that the Probation Officer might be wrong, I had to denounce that foolish recommendation for what it was: dangerously ignorant, ill-advised and just plain WRONG.

Yet for all of that, there are times when, as the saying goes, "life has a way of getting in the way of life." This can happen when a person is Arrested for a DUI and their breath test result is off the charts. We can debate where "high" leaves off and "really high" begins until the stars burn out, but once a person blows over .23, it becomes increasingly difficult to convince a Judge that such a result is anything less than proof of a rather highly developed tolerance to alcohol. In other words, the whole "isolated incident" argument becomes a real tough sell when a person's BAC tends to prove that he or she is a heavy drinker.

This isn't a particularly hot topic for Lawyers to get into online, principally because it contradicts the whole "hire me and I'll make the whole thing go away" pitch, but unless you're banking on being one of the lucky 95 out of 54,291 people charged, then perhaps a healthy dose of reality is in order. I simply cannot pretend otherwise, and I'd rather not take money from someone who expects the nearly impossible in terms of results. I get plenty of people as 2nd Offense Clients who tried that route the first time. I'm often told that my candor was appreciated, and influential in the decision to hire me, and that they wish they'd have found me the first time.

There is, in my mind, a moral component to all of this, as well. I am a DUI Lawyer, first and foremost. I have no moral reservation about using every one of my considerable resources to minimize every single consequence that my Client faces in a DUI case. Yet if I see the hallmarks of an underlying lack of insight, meaning I see what I think in are indications that this DUI may not be an isolated incident, or that my Client is at risk to do this again, or to develop (or exacerbate) an alcohol problem, I have a duty to at least give my Client a few things to think about. I have to make sure my Client can take a step back from the whole legal situation and take a look at his or her drinking. While this isn't "Lawyer" stuff, how can I abandon my responsibility to another human being who has come to me for help?

As much I hope my Client can take an honest look at their drinking, the fact is, there is no better way to scare somebody away than to preach. Instead of doing that, I find it far better to give someone a way to look at his or her drinking. If they choose to use it, they can come to their own conclusions. If not, well, they simply may not be ready to do that yet. It may also be that even after the most honest and searching inquiry, they find they don't have a problem. Maybe all they need to do is change the way they think about their drinking, or even change the way that they drink. Maybe it's time to let go of some of the old friends and skip the bar scene, or make some other adjustment. Whatever else, even if a person really does have a problem with alcohol, and this is a huge point missed by the Courts, nothing can or will be done about it unless and until the person sees it himself or herself. My role, then, is just to introduce another perspective for them to consider. This is where my knowledge about alcohol and addiction issues is helpful.

In the final analysis, however, I have to protect my Client from the reaches of the Court. I am hired to make things better. My job, to put it rather bluntly, is to save my Client's butt. There is a real risk that a person facing a 1st Offense DUI will get caught up in Counseling an treatment they don't need, based on a flawed "diagnosis" that really isn't any kind of diagnosis at all. I can spare my Client a lot of inconvenience and money, not to mention avoid a label that doesn't fit. A DUI case is fraught with enough problems and risks as it is; at least I can help avoid getting tripped up by those that are avoidable or unnecessary.