Michigan Criminal Defense Lawyer Blog

In part 7 of this article, we continued our examination of the role of the alcohol bias in DUI cases. I made clear that while just about any lawyer can tell a person what they want to hear in order to get a retainer, a good and honest lawyer won’t do that. As it turns out, there is a cost to telling people what they need to hear, and it’s calculable in dollars NOT paid by people who will buy into hopeful marketing techniques of those lawyers who make it seem like having your entire DUI case dismissed is just a matter of hiring them. Beyond the honesty and integrity of my team, I have a formal, post-graduate education in addiction studies that I use to protect my clients from getting slammed with unnecessary counseling and treatment. Because of what’s in our heads and in our hearts, my team and I just “know” certain things that we can’t ignore simply to make a buck.

For all my self-aggrandizement about my clinical background, the reason I have it in the first place is even more important than the formal education itself: the other half of our practice, directly related to DUI, is driver’s license restoration appeals, where understanding and proving sobriety is the absolute key to success. On that front, we know our stuff well enough to guarantee to win any initial driver’s license restoration or clearance case we take. In handling over 200 license appeals each year, we explore and hear, on a daily basis, how people recover from drinking problems. A person can only truly understand recovery when he or she truly understands how alcohol problems develop in the first place.  To really see this, you must be able to look past the alcohol bias.

In a license restoration appeal, we have to go over every aspect of a person’s drinking, leading up to his or her decision to quit. We hear all about the struggles, the false starts, and the relapses along the way. Ultimately, we get to what finally worked for a person to get sober. This perspective gives us the benefit of 20-20 hindsight in seeing how people do, in fact, recover. We get to reverse engineer drinking problems, and how they got “fixed.” We hear people explain what did and didn’t work on their various journeys to get sober, and we hear the stories of what things resonated with people, and what didn’t. Much of what we hear – the things that actually worked – is very different from what those in the court system think they know. In that way, the alcohol bias is a filter that colors, and to an extent, distorts, the real picture.

In part 6 of this article, we saw how the alcohol bias is consistently reinforced in the court system, and we looked at how the DUI process in Michigan courts has changed over time. As we move into part 7, we’ll look at the alcohol bias and how it affects the counseling and treatment orders made by the courts in DUI cases, and what the role of the DUI lawyer should be at this stage. Once you have a sense of how big and pervasive the alcohol bias really is, then you begin to realize the critical importance of taking whatever steps you can to set yourself apart from the everyone else going through the DUI process, so that you’re not automatically treated just like everyone else.

There are 2 kinds of people who get a DUI: those who do have a drinking problem, and those who don’t. The main problem with the alcohol bias is that it tends to “read” a problem, or potential problem, into everyone who walks into court following a drunk driving arrest. If you DO NOT have a drinking problem or are not otherwise at risk to develop any kind of troubled relationship to alcohol, then it is critically important that you successfully demonstrate that fact. In our roles as Michigan DUI lawyers, making sure our clients succeed at doing this is a key part of our jobs.

There is one big catch to this, however; it has to be true. In other words, the only way to even have a shot at overcoming the alcohol bias is to be able to prove, in a clinically sound way, that even though you come into court as a member of a high-risk group, you are actually NOT a high-risk person. This requires a lot more than just jumping up and down and insisting that you don’t have a drinking problem. On a scale of 1 to 10, the effectiveness of telling everyone your relationship to alcohol isn’t problematic, that technique rates a solid zero.

In part 5 of this article, we continued our examination of the alcohol bias in DUI cases, particularly in the context of the mandatory alcohol assessment, PSI (pre-sentence investigation), and the sentencing recommendation written by the probation officer and used by the Judge in deciding what kind of punishment to impose. I pointed out that, however well-intentioned they may be, neither the probation officer nor the Judge are practicing therapists, and that sometimes, the courts have notions of “helping” that are at odds with better clinical practices. Here, in part 6, we’ll zero in on exactly how and why the alcohol bias affects the outcome of a DUI case, how, over time that has changed the way courts do things.

My goal here is not to characterize the way things are done in DUI cases as overtly negative, or as the result of any kind of bad intentions. Instead, I just want to point out that it is what it is. If you have to go to court for a DUI, there is an established way of doing things that you’re going to walk straight into. It’s important to understand that not only does the alcohol bias account for how and why things are done as they are, but also that the bias tends to feed itself, and, over time, changes the way the courts process DUI cases. The bottom line is that things have consistently gotten “tougher,” in DUI cases, and there is little reason to believe that trend will ever change.

As I’ve tried to make clear, the alcohol bias is not only rooted in fact, but it is confirmed and reinforced by experience. Even if the court system was staffed by experienced substance abuse counselors, the alcohol bias, notwithstanding that it would be less of a factor precisely because of their clinical experience, would still not disappear completely. As much as any counselor may know about alcohol problems, they are not Judges or probation officers, and for as much as any Judge or probation officer may know about alcohol problems, they are not counselors, either.  Although counselors may regularly deal with DUI drivers, they do it in a context very different than the courtroom, or probation office.

In part 4 of this article, we began looking at the mandatory alcohol assessment (screening) in Michigan DUI cases, how that’s part of the larger, PSI (pre-sentence investigation) process, and how all of that is influenced by the alcohol bias. As I pointed out, one of the questions on every alcohol screening instrument (test) asks if the person completing it has ever been arrested for an alcohol-related traffic offense. Thus, anyone taking such a test because of a DUI begins with a handicap. Moreover, the fact that a person is in a probation office for an interview following a DUI means that, on at least one occasion, drinking has had a substantial negative impact on his or her life. Here, in part 5, we’ll direct our focus to the written sentencing recommendation that is sent to the Judge by the probation officer after, and as a result of, the pre-sentence investigation and alcohol assessment.

This is really THE key to what happens to anyone going through a DUI, and you can take this much to the bank: Every Judge, in every court, follows the PSI sentencing recommendation very closely. Most will follow it to the very letter, but you won’t find ANY judge who will deviate significantly from what has been recommended by his or her probation officer. This means that the sentencing recommendation is really the blueprint for what is going to happen in a Michigan DUI case.

This means that it is imperative to be thoroughly prepared for the alcohol screening test and the PSI (especially the interview with the probation officer) beforehand, because the key to success is to get a better (meaning more lenient) sentencing recommendation in the first place. Remember, success in a DUI case is always best measured by what does NOT happen to you. In that context, less is always more. Part of being thoroughly prepared means coming to understand how the alcohol bias does, in fact, affect the PSI and screening process.

In part 3 of this analysis of how the alcohol bias in the court system affects all DUI cases in Michigan, we saw how the endless parade of DUI arrest videos does nothing but reinforce the alcohol bias. We also saw how the bias is further reinforced because, while every DUI driver promises that “it won’t happen again,” some of these same people (or others who have made the same promise to a different Judge) return to court for their 2nd or 3rd DUI charge, or otherwise test positive for alcohol while under a probation condition forbidding them from drinking. We left off having touched on how the alcohol bias affects the key role of the probation officer plays in determining what happens in a DUI case. Here, in part 4, we’ll take a closer look at what the probation officer actually does, and why that’s so important.

In DUI cases, it is the probation officer who administers and scores the legally required alcohol assessment test. He or she will also conduct an in-person interview with the person going through the DUI, and then put together a full background and profile of him or her. Using these things, and relying upon the results of the alcohol screening test, the probation officer will thereafter write up a sentencing recommendation that must be forwarded to the Judge, outlining exactly what kind of sentence the person should receive.

It’s really impossible to overstate how decisive the written recommendation made by the probation officer is to the outcome of a DUI case. In fact, it’s not wrong to say that, in many ways, the probation officer is as important as the Judge, while in other ways, the probation is even more important. As we’ll see, the alcohol bias directly affects how probation officers perceive and do things, and therefore directly impacts how they go about their jobs. Here again, I don’t mean to imply anything ill-intentioned or nefarious about this, other than to point out that the alcohol bias is just there. Although it escapes conscious notice, it does, in a very real way, directly impact what ultimately happens to everyone who goes to court for a DUI charge.

In part 2 of this article, we continued our in-depth examination of the alcohol bias in DUI cases. Here, in part 3, we’re going to keep going, and we’ll begin by exploring how police car dash-cam video reinforces the bias. From there, we’ll move on to the “it will never happen again” promises Judges hear every day, and then conclude this section by noting the ultra-important role of the probation officer, which we’ll analyze more fully in part 4. The point I want to drive home right now is that what Judges and the rest of the people in the court system (including probation officers) see and hear every day only reinforces the alcohol bias and their existing notions about drinking and DUI drivers. As DUI lawyers, it crucial for us to understand this, and help each client navigate around it, rather than letting him or her plow straight into it.

One of the most “visible” reinforcers of the alcohol bias is video, and specifically, video of traffic stops, field sobriety tests and DUI arrests. It is pretty much standard practice, in our office to obtain and watch the police-car, dash-cam video in every DUI case we take. Along with that, we’ll often obtain any other related videos, like the booking video, or body-cam video, or any other video that we think relevant. Over the years, we have seen more DUI arrest videos than we could possibly count. We do this to find something we can use to get a case knocked out, or to drive a really favorable plea bargain.

Videos can be great, but it must be used in a very calculated way. For example, in one particular DUI case that I managed to get dismissed, I presented only the specific, limited part of the video – up to the traffic stop – that showed how my client was NOT driving erratically, contrary to what the police officer had described in the written report. For strategic reasons, I stopped the video at the very point when my client stopped his car and didn’t present anything that happened afterwards.

In part 1 of this article, we began a comprehensive, multi-installment look at the “alcohol bias” underlying every DUI case within the court system. In this second part, we’ll continue our examination, this time focusing on how the court’s experiences with DUI cases serves to reinforce the bias. This will not be an examination of the legalities involved in DUI cases, or anything like that. Instead, we’re looking at what those who work in the court system see, day-in and day-out, that builds upon the statistical reality that DUI drivers, as a group, have a higher rate of drinking problems than the population at large, and causes the court to believe that they require “special” handling.

Earlier, in part 1, I noted that in Michigan, the State Police are required, by law, to audit and track every DUI case from arrest through final disposition each and every year. Although the marketing messages of many lawyers might lead you to think otherwise, the fact is that less than 2% of all the cases that make it to court are dismissed, or “knocked out” for any reason. Here, it’s worth pointing out again that, within that small group who do manage to get out of a DUI charge, most have their cases dismissed for legal problems with the evidence.

If those numbers aren’t bad enough, it gets much worse when we drill down to the percentage of people who actually “win” and beat a DUI charge at trial. Each year, less than 0.2 (that’s less than 2-tenths of one percent) of people charged with a DUI actually go to trial and get found “not guilty.” Among the more than 31,000 people arrested for a regular DUI in 2018, only 48 went to trial and won.  In 2017, out of the 31,000-plus people arrested for a DUI, a mere 31 were acquitted after trial.

Underlying every Michigan DUI case, and just about everything that happens in it, is the “alcohol bias” in the court system. In fact, it can be argued that this alcohol bias essentially controls how DUI cases proceed through the legal system. This is not to suggest that there is anything malicious about it, because the bias exists independent of anyone’s intentions (good or bad). Understanding the alcohol bias is key to really understanding the court system, and the reasons for the DUI process. Being able to see how the alcohol bias influences those who work within the court system helps explain why it directly and significantly impacts every single DUI case.

I have written about the alcohol bias before, but in this article, I want to really dive into it. This multi-part installment will be, by far, one of the most important of the more than 425 DUI articles I have written and published to date, and will have its own section within my blog topics, as I anticipate linking back to it often. What will be covered is fundamental to why courts do the things they do in DUI cases. It’s important to note that the alcohol bias is largely subconscious, generally operating below the awareness of those who work within the court system. Just like oxygen, the alcohol bias may be invisible, but it is also everywhere.

The big impact of the alcohol bias, at least in 1^st offense cases, is that anyone coming into court for a DUI is assumed to be at-risk to be a problem drinker. Therefore, this person should be ordered to take a break from all drinking and be required to provide breath and/or urine samples to prove that he or she isn’t. The alcohol bias is grounded in fact; studies have consistently shown that, as a group, DUI drivers have a higher incidence of alcohol problems than the population at large. The real-world implication of that is that anyone walking into court for an OWI charge does so as an identified member of an at-risk group. If a lawyer doesn’t fully comprehend and start from this point, then his or her client begins with a disadvantage.