The "Problem" with Michigan DUI Cases

September 23, 2013

Whether it's a DUI anywhere in Macomb, Oakland or Wayne County, there is an undeniable negative vibe that is part and parcel of any Detroit area drunk driving charge. If you've already been in front of a Judge or Magistrate, then you've likely had your first taste of this. Anyone having to "test" as a condition of his or her release fro jail, for example, already feels that the whole "innocent until proven guilty" thing has been turned on its head. Beyond feeling like you have to prove your innocence, it feels like there is a certain sense that you have an alcohol problem just because you've been cited for OWI.

You're not misinterpreting things. When you get caught up in the world of a DUI, you can darn well count on having to labor under the presumption that your drinking is, or is at least at risk to become, a problem. To be clear about it, the whole judicial system, for better or worse, has gotten caught up in the agenda of MADD. It used to be that MADD's mission was to prevent drunk driving, but even it's founder quit years ago because she felt that organization had lost its focus and become far too "anti-drinking," rather than focusing on the prevention of drinking and driving.

Thumbnail image for Thumbnail image for problems 1.2.jpgAs a Michigan DUI lawyer who is also involved in formal University education at the post-graduate level in alcohol and addiction issues, I am specially equipped to stand up and argue for you and keep you from getting swept away by the tide of "you must have a drinking problem" sentiment that seem to dominate the thinking of everyone in the court system simply because you're facing a DUI charge.

Still, there is a reason that Judges and probation officers have, almost unconsciously, shifted over to such staunch anti-drinking positions. In this article, we'll look at how and why the everyday experience of a Judge or probation officer shapes his or her beliefs about drinking and people facing a DUI charge. In particular, we'll see that as much experience with alcohol issues as any Judge or probation officer has, every last bit of that experience is negative. There is no case handled by any Judge or probation officer where a person's drinking has not been, at least on the occasion that gives rise to the charge, problematic. Remember, every Judge or probation officer works all day, every day, with people whose use of alcohol was problematic enough to bring them into the legal system.

By contrast, those same Judges and probation officers have never so much as spent an hour of their working life dealing with situations where a person's alcohol use was not problematic. Non-problematic use if alcohol won't get you arrested. It only makes sense that if your drinking hasn't caused a problem, then you don't wind up facing charges for it. The person who has a glass of wine with dinner and doesn't get arrested doesn't have to go to court. As a consequence, it's only to be expected that many Judges and probation officers eventually form negative attitudes about drinking.

That's not to say that they're abstainers, or teetotalers, either. The point I'm making is that the negative attitude they develop about drinking is essentially created by and focused upon those who have been charged with a DUI, which, in Michigan, is actually called OWI, or Operating While Intoxicated. And while this article is about overcoming being perceived as having a problem, we'd miss the proverbial elephant in the room if we didn't acknowledge that there is a very good reason these attitudes develop and are sustained in the first place. Statistically speaking, a much larger percentage of people arrested for a DUI have an underlying drinking problem than the population at large. In other words, if you had 2 empty rooms, and you filled the first with 100 people chosen at random, and then filled the second with 100 people currently facing a DUI charge, it shouldn't come as a surprise that, as a group, you'd find a much higher incidence of problematic drinking amongst the DUI group than the group chosen at random.

Moreover, when you look at people who are in recovery from a drinking problem, you will find a very high percentage that had one or more DUI arrests. In fact, many people in recovery credit a DUI arrest (usually a 2nd or 3rd or even a subsequent offense) with being the catalyst that finally caused them to hit "bottom" and stop drinking.

What may have turned out to have been a blessing in disguise for the person in recovery, however, turns out to be a nightmare for the poor soul who just drank a little too much on one occasion and made the bad decision to drive, and then got caught. To make matters worse, courts in different locations have different attitudes about this. In certain Oakland County courts, if you're facing a DUI, you'll almost feel like your facing a murder charge, while in some Macomb and Wayne County courts, there are still Judges that actually (and correctly, I might add) believe that a DUI can just "happen" and may truly represent an out-of-character incident for a person.

In any court, the relationship between the Judge and the probation department is important, because it affects how DUI cases are handled. By law, in a Michigan DUI, prior to actually being sentenced, the law requires that a person convicted of a drunk driving offense undergo an alcohol screening. Technically, this is a kind of substance abuse or alcohol use evaluation, meaning it is a written test that has to be completed and scored. This is really technical stuff, but the cold, hard truth is that the court system doesn't have the resources or time to have this evaluation completed by an outside credentialed substance abuse counselor, so the task of getting this done is given to a probation officer. Since he or she is NOT a clinician, instead of administering a more in-depth evaluation and combining it with a clinical interview, as a substance abuse counselor would do, a much more convenient test, usually the kind that can be found online, is administered. This is analogous to the court using a "dipstick" urine test as opposed to having a sample sent to a lab for full testing.

In time, after handing out and then scoring these tests over the course of years, the probation officer begins to see "patterns." Some of what a probation officer might see is accurate, but when it comes to making a formal diagnosis regarding whether a person is a normal alcohol user, abuses it, or is dependent upon it (under the new DSM-V, the new diagnosis is "alcohol use disorder" and a person either doesn't have it, meaning he or she is a normal drinker, or has the disorder in one of three degrees: mild, moderate or severe), he or she is essentially "playing" clinician. From my perspective, even those few probation officers with drug and alcohol counseling credentials, unless he or she is just moonlighting as a probation officer and otherwise works as a substance abuse counselor, are still "playing" clinician. I am a licensed attorney. I am legally credentialed to take on a complicated divorce case. I've never handled such a case in my life, so if I was to get involved in one tomorrow, I think it would be dead accurate to say that I would be "playing" divorce lawyer.

And that really cuts to the heart of the matter, because if you see only one part of everything every day, you can easily forget about the other part. Thus, if your day-to-day experience is with drunk drivers, you are likely to begin forming and then having regularly reinforced a strong connection between drinking and DUI. Remember, neither a Judge nor a probation officer spends any part of his or her day dealing with someone who DIDN'T get in trouble while drinking. On top of that, the whole concern about "drinking" isn't that the Judge or probation officer is worried about the role of alcohol in society at large. Instead, the concern is about the role of alcohol in the life of a person brought into the legal system because he or she has been arrested for a DUI. And while that concern has some validity, it should not mean that everyone charged with a DUI should be treated, right out of the gate, like his or her use of alcohol is a problem, and then have to bend over backwards to prove that it's not.

This, in fact, is a large part of the reason I decided to enroll in a post-graduate level addiction studies program. Even though I had long made a study of alcohol and drug issues, I knew I needed the specific training and credentials lacked by those who "play" clinician. This is particularly important in a DUI, where I can point out to the court exactly why the implication or suggestion that my client has, or is at risk to develop, a drinking problem is wrong. This translates directly to sparing my client from getting stuck in all kinds of classes and counseling.

I could write about this topic endlessly, but here's an example that sums this up pretty well: Sometimes, in a 1st offense DUI case, even after having spent separate face-to-face time with my client to prepare him or her for the substance abuse evaluation (I do this in every DUI case I handle, and cannot even begin to understand how any lawyer could not spend at least an hour with the client, prior to the alcohol screening, covering this phase of the case), the probation department will send a written recommendation to the Judge (this is also required by law, and is really the product or result of the whole alcohol assessment test, and is also why I noted above that the relationship between the Judge and the probation department is important) advising that, for some reason or other, the person is "at risk" to develop an alcohol problem, or in some way "identifies with" those characteristics of a drinking problem.

I stop that stuff dead in its tracks., because it's dead wrong. There is no clinical assessment that takes into account a person's BAC at the time of arrest as a criterion for assessing an alcohol problem. Nor is there any clinical diagnosis of being "at risk" to develop and alcohol problem, or that a person otherwise "identifies with" those characteristics of problem drinking. Clinically speaking, either you have a drinking problem, or you don't. It's like cancer; you may smoke, and otherwise be increasing your risk to get it someday, but at any point in time, you've either got it, or not. Yet this is also the stuff that gets bandied about in court everyday, and has become so commonplace that it's accepted. Unless you have a relatively solid clinical education, you don't know any better. Those "patterns" that a probation officer sees regularly begin to get superimposed on everyone facing a DUI. This is unfortunate, and really should be warning against generalization. As much as almost all serial killers are men, most men are not serial killers. Patterns, in that sense, may at times prove to be useful frameworks, but they are not absolutes that should constrict how we see the world.


This is when I can stand up and point out to the court that my client does NOT meet any clinical criterion for a problem, and that the probation department's suggestion that a person is somehow "at risk" or otherwise "identifies with" a drinking problem falls way outside of what has clearly been established as defining or marking out the problematic use of alcohol. This is also exactly where anyone without formal addictions training is lost. In that sense, just being a lawyer, and even being a first rate DUI lawyer, isn't good enough.

A DUI case is unfortunate enough. The last thing anyone needs is to face a DUI and then wind up being perceived and/or treated as though the drunk driving charge is some kind of sign of an underlying drinking problem. I won't let that happen. When a DUI charge is nothing more than an isolated mistake in judgment, I will make sure it doesn't get blown out of proportion.