Michigan DUI /OWI and the Real World Things That will Happen in Your Case (it's not as bad as you Think) - Part 2

December 27, 2013

In part 1 of this article, we began looking at the "big picture" in a Michigan DUI case, trying to separate all the scare tactics that too often obscures the much more palatable reality in a 1st offense case that you're almost certainly not facing any jail time. We learned that a Detroit-area DUI case is not the end of the world, and that by hiring a local Michigan DUI lawyer (meaning one who practices exclusively in Macomb, Oakland and Wayne Counties) like me, even many of the potential "real world" negative consequences can be avoided. We saw that those that cannot be avoided outright are manageable, at worst. Beyond that, we looked at the first 4 of what I have called the "5 most important" aspects of a DUI case. Those included the cost (and yes, aggravation) of having to hire a DUI lawyer, observing that, on the one hand, there is little benefit to be had from the cut rate services of the low bidder kind of lawyer, while on the other hand, there is certainly little or nothing worthwhile to be had from spending too much for a lawyer, either. This is especially true in a 1st offense OWI case.

We noted that the DUI itself is going to be expensive, that barring a dismissal of the case, there will be at least some restriction of your Michigan driver's license, and that the whole process is (by legislative design) inconvenient. Here, in this 2nd part, we'll pick up where we left off and look at the mandatory alcohol screening test, the required interview with the probation officer, the probation officer's duty to write and forward a written report to the Judge recommending what your sentence should be, and how that all interacts to determine what matters most in any DUI case - what actually happens to you.

Rainbows 1.2.jpgAbove and beyond the 4 things we've discussed in part 1, the 5th, and most what I think is by far the most important aspect of a Michigan DUI case (unlike a misplaced concern about going to jail, which we noted almost certainly is not going to happen anyway), is that you ARE at risk to get shuffled into some kind of "alcohol classes" or counseling, even in a 1st offense situation. This is my home territory, and where I can help you in a way unsurpassed by anyone else.

In my own travels around the internet, I noticed that some DUI lawyers, for example, highlight their training with the datamaster breathalzyer instrument used at the police station. This "training" typically consists of a 6-hour, one-time class put on by the Michigan State Police. The sad reality here is that, unless your case can be won at trial because of a faulty or mistaken breath test, or it can otherwise be dismissed for that reason, a lawyer's knowledge about this machine, even if he or she can take it apart and rebuild it blindfolded, is essentially worthless to you. A DUI lawyer might as well advertise that he or she has a black belt in karate, because that will provide about the same degree of help in your DUI case.

By contrast, being able to speak with authority about what does, and, more importantly, in the context of facing a DUI, what does NOT constitute an alcohol problem, can make all the difference in the world to what actually happens in your case. It is highly unusual for a lawyer to have this kind of knowledge and training, but I do, and that can bring an unparalleled advantage to your defense.

This is key. This really is the "meat and potatoes" of any and every DUI case that isn't "knocked out" for some technical reason. The chance that you will actually go to trial and have a Judge or jury find you "not guilty" of any and all charges is statistically remote. If you want to plan intelligently, then hoping for a miracle isn't the way to go.

Unless your case is simply thrown out of court, there is a 100 percent chance that you are going to be screened for a potential drinking problem, because it is required, by law. The court must order that your history with alcohol be closely examined, and it will order you to refrain from drinking. It is also quite likely that you will be subjected to some kind of alcohol testing to make sure that you don't drink while this "no drinking" order is in place. In a DUI case, the entire focus of the court quickly shifts from your arrest to your relationship to alcohol. This is where and why the real risk in a DUI case is getting wrapped up in all kinds of alcohol classes and counseling and even AA. This is the part of the case where I can make things better, and help you avoid the expense and inconvenience of unnecessary education or treatment. Here, I bring highly specialized and entirely unrivaled educational background to the table that can directly help you and clearly separates me from the rest of the pack of "Michigan DUI lawyers."

I am actively and formally engaged in the study of alcohol and addiction issues at the post-graduate, University level. This is not online stuff, either. I spend more than 8 hours every week involved the actual study of the etiology (development) of problematic drinking, how that is clinically diagnosed, and the application of empirically validated treatment protocols. I am in a classroom, every week, at the University of Detroit Mercy McNichols campus. This means that when the court system stands poised to suspect or make it seem like you have, or may be at risk to have, a drinking problem that you don't, no lawyer can defend you with more authority than me. Beyond speaking the language of the law, I speak the language of the clinician. I've handled DUI cases for nearly a quarter century, but you wouldn't get the kind of specialized and useful education I have if you handled them for 300 years.

My training is relevant in every DUI case because Michigan law requires that before a person can be sentenced in any alcohol-related traffic offense (meaning any kind of DUI), he or she must undergo an alcohol screening assessment. This requires the taking of a written test about your alcohol past and present alcohol use and your attitudes about drinking. The test is then scored. In addition, you will be interviewed by a probation officer and asked questions about everything from your upbringing to your current living situation, your occupation, stresses in your life to your future plans. Using the information he or she learns from you, and based in significant part upon your alcohol screening test score, the probation officer must make a written recommendation to the Judge as to what kind of education, counseling and/or testing you should get at sentencing. This has a million times more influence on the outcome of your case than anything and everything else combined.

You need to be carefully and specifically prepared for this. Normally, we will go over this a bit, just to introduce you to the relevant concepts, when you first come in, and then specially and specifically make another appointment to prepare you before you ever have your meeting with the probation officer. This is an extra step in the process that's unique to me and ho w I do things in my office. Realistically, it would make little sense for a lawyer without any kind of clinical education to even try this, as he or she doesn't have a formal understanding of how the written alcohol assessment test works anyway. But I do.

This brings up a theme that applies here, and in most other important areas of life: Preparation matters. Good results are seldom the result of good luck (and good luck is already in short supply if you've been arrested for a DUI in the first place). Good work is the key to good results. This extra meeting I have with my clients is critical in paving the way for a more favorable outcome in the case. The whole "classes and counseling" is a constant undercurrent, or kind of realistic "threat," in every DUI case.

Most people have some inkling or sense of this already, and understand that they do face being ordered into attending AA, or some kind of classes or counseling. To be clear, the days of just paying a fine in a DUI case are pretty much long gone. In today's world, success (or failure) in a DUI case is really judged by looking at what the Judge requires you to do, and not to do. In other words, if you get stuck in some 8-week alcohol education program that could have been avoided, that's not good. If the Judge orders that you go to AA (and unless you had been wanting to go to AA anyway), that's a failure. All of this makes perfect sense to anyone who has had a prior drunk driving case. If this is your first (and hopefully only) time dealing with the real life consequences of a DUI, then minimizing the real life potential consequences is where your efforts should be directed, because otherwise, you'd have to pay for and attend that 8 week alcohol counseling/education program, and you'd have to make the time to find and attend AA meetings and get attendance sheets signed.

It goes without saying that getting help is beneficial and important, if you need it. If you , however, then being loaded up with expensive and inconvenient "preventative measures" is a thing to avoid, rather than just endure. Early on, it is not uncommon, before a person gets a sense of what really might happen and he or she most fears going to jail, to declare his or her willingness to do "any kind of classes or AA or whatever." Of course, anyone would rather do classes or rehab over jail. When you find out that you were never at risk to go to jail, however, then who wants to do all that, especially when it's not needed.

I can provide unequaled help at this ultra critical point in your DUI case. All the expertise in the world about the breathalyzer machine and the traffic stop and the evidence is of precisely zero value when you stand before a Judge to be sentenced for your DUI. At that point, the only thing that matters is what the probation officer's sentencing recommendation says about you and your relationship to alcohol, and what someone like me can say, with authority, about the recommendation itself. Since we already know this will almost invariably not involve going to jail, it will become critically important to be able to deflect any "classes or counseling" recommendation made by the probation officer in his or her report, even though the most important step in shaping a favorable recommendation is to be thoroughly prepared for your alcohol assessment test and probation interview in the first place.

Whatever else, probation officers do not work as clinicians, and there are only several I've ever encountered in the Detroit area that have any kind of alcohol or drug certification. This means that, just like everyone else, the probation officer will be influenced by "non clinical" factors in your assessment. We can see how this plays out by looking at a real life example from a case I handled:

My client had been driving on I-696 when he lost control of his car and it rolled over. He had moderately high BAC test score (I recall it being about .18 or .19) that was determined by a blood test taken after he was extracted from the car and taken to the hospital to be treated. His face sustained significant lacerations, but he was reasonably okay beyond being banged, bruised and cut up. I knew, however, that the whole court system was going to "see" him as having a drinking problem, not because there was any clinical indication that he did (in fact, and as we'll see, he clearly did NOT have any kind of a troubled relationship to alcohol), but because of the other facts in his case that just made it seem serious.

That's exactly what happened. I thoroughly prepared my client for his alcohol assessment test, and the meeting with the probation officer. He did very well on the alcohol-screening test, and did exactly as he should have done when he interviewed with the probation agent. Even so, the probation officer couldn't get the "serious" non-clinical factors out of her mind. Despite testing out as not having a drinking problem, the probation officer (predictably) recommended that my client enroll in alcohol counseling because of his higher BAC test result and the "seriousness" of the results of his driving while over the limit. I just wasn't going to stand by and let that happen.

Without proper clinical training, what could I have said to the Judge that would have made any difference? Do you think it would have mattered if I simply disagreed, however much, with the probation officer's assessment and recommendation? Of course not! Accordingly, I had to rebut the probation officer's concerns and show the judge how, from a clinical (meaning substance abuse counselor) perspective, they didn't make any difference.

Two very striking aspects of my client's case "seemed," but were not actually important. As a result, things got "blown" out of proportion, at least until I stepped in. First, he had rolled over the car on the freeway. However you slice things, that just "seems "bad." Second, his BAC was high (I handle cases with BAC scores much higher than that every week), although not necessarily through the roof. Anyone looking at his case will have to admit that it just "seems" serious. It almost makes sense to suspect that, because his BAC was more than twice the legal limit and because he rolled over his car and had to be rescued from it as it lay upside down, blocking the freeway, he must have a drinking problem.

Almost. Maybe. But not certainly, and, in his case, the reality, if not the irony, was that he did not have any kind of drinking problem.

In court, I very clearly laid out to the Judge the clinical criteria for determining if a person has a drinking problem. I pointed out that the "seriousness" of any particular incident is NOT part of that analysis. In fact, under the then-applicable diagnostic framework (the DSM-IV, which, while still widely used, had been superseded by the DMV-V as of May of 2013), only multiple legal troubles resulting from one's drinking has any significance. Interestingly, under the new DSM-V, legal problems from one's use of alcohol are no longer even considered as diagnostic factors, a fact that will likely be ignored for the foreseeable future in the courts (except when I point it out) and the whole criminal justice system.

In addition, I demonstrated how a person's BAC score, while perhaps legally significant, is NOT factored into any clinical evaluation. Thus, having been in a roll-over accident and having a high BAC may sound bad to the Judge, but when evaluating for the clinical presence of an alcohol problem or even just the potential for a person to abuse or develop an alcohol problem, those facts do not matter.

The Judge, of course, was taken aback. On the one hand, he probably, just like everyone else, thought the facts of the case were "serious" enough to require some kind of counseling. Because I was able, however, to show the actual clinical criteria for diagnosing the presence of an alcohol problem very clearly did not include the more salient aspects of my client's case, he simply could not ignore that. Ultimately, he acknowledged the correctness of my position, and ruled that any decision about whether my client needed treatment or not should be made after a full and clinical evaluation, rather than based upon the conclusions made by a probation officer.

My client did, in fact, subsequently have a clinical evaluation, and, of course, the conclusion reached was that he did not have a drinking problem. Thus, he didn't wind up having to pay for and attend burdensome counseling that he really didn't need in the first place.

Whatever else, it was my rather eclectic background that mattered there, and matters everyday when I help people avoid the potential real life consequences of a DUI charge. My kind of specialized education takes years in the classroom and costs tens of thousands of dollars, but it provides me with a unique skill set that directly helps my DUI clients in every case. The irony here is that when used effectively, the value of my specialized training will go largely unnoticed. In other words, if you have very big and bad cut that needs stitches, and the physician that sews you up is really talented at what he or she does, you'll never know how bad the scar could have turned out. The same holds true with the consequences I help my client's avoid.

It should be clear by now that the general "big picture" focus of a DUI case is what actually happens to you. This is only logical. Whatever can happen, or even might happen, it is what really does happen that you'll have to deal with. It has been my goal in this article to present a "big picture" that is a real picture. If you have ever been on an airplane, you know that there is a theoretical risk it can crash. The risk of that actually happening is so unlikely, however, that it's not even worth talking about. In the real world, it is much more likely that your baggage can get lost or delayed.

The same holds true with a Michigan DUI case. Staying out of jail is usually automatic, or at least most often easily managed. The real world risks that need to be addressed in every Michigan DUI case are things like making sure that you don't lose your driver's license and not getting stuck with any avoidable alcohol education classes, counseling, or mandatory AA meetings. This simply means that it becomes my job to keep the court out of your life as much as possible, and I am especially good at it.