Ignition interlock violations are fairly common in Michigan driver’s license restoration cases. In this relatively compact, 2-part article, I want to focus on the worst kind of violation: a start-up failure where the person just walks away from the vehicle, and does not, thereafter, obtain either a PBT or EtG test to show he or she hadn’t been drinking. I wish there was some way that this piece could be read by everyone on an interlock BEFORE they run into any trouble, but the reality is, most people will find it when they’re looking for help after something has gone wrong. At a minimum, what we’ll cover will help explain why this specific type of interlock violation is so problematic.

dont-do-this-small-217x300Before we get to that, we should clarify the term “violation.” Everybody, including the Michigan Secretary of State hearing officers, uses the word “violation” to mean 2 very distinct things: first, to describe an event or incident that fails to meet the requirements of proper interlock use, and second, to describe a formal hearing scheduled when any such incident(s) results in someone’s license being revoked all over again. Things would be much clearer if we described the former as something like a “non-compliant incident,” and the latter as a “violation hearing.” Don’t hold your breath for that, however.

Instead, any missed rolling retest, startup failure, tamper/circumvent or positive breath test result is simply, albeit erroneously, called a “violation.” Under the interlock rules, if a person has even 1 missed rolling retest or a tamper/circumvent, he or she is formally “violated,” and his or her license is revoked all over again. As if what we’re talking about isn’t confusing enough, that re-revocation of a license is technically called the “reinstatement of original action.” The only way for someone to get their license back is to request a hearing within 14 days from the date that reinstatement of original action (the revocation) goes into effect, which is usually about a week or so after he or she receives a notice of the violation from the Secretary of State.

As Michigan driver’s license restoration lawyers, we hear a lot of the same things over and over again. One of the most common things we’re told is that a person “needs” to get his or her license back. This is a topic I have to address rather frequently in order to keep it in the reader’s line of sight. In this article, I want to make clear that “needing” a license has nothing to do with actually being able to win it back, and then focus on the main thing the Michigan Secretary of State looks for in every license appeal: real sobriety.

Pencil-4License restoration and clearance appeals are decided under strict rules that essentially require a person prove, by what the law defines as “clear and convincing evidence,” that he or she has not consumed any alcohol (or used any drugs) for a a “sufficient” period of time (generally, my office requires a minimum of 18 months’ clean and sober), and that he or she also has the commitment and tools to remain alcohol (and drug) free for good. In other words, a person has to prove he or she has honestly quit drinking (and/or getting high) and is a safe bet to never drink or use again.

As complicated as the whole license appeal process can get, each and every one starts when a person who has had his or her license revoked for multiple DUI’s files an appeal to get it back. The ONLY thing the state cares about in all of these cases is making sure the person is not a risk to drive drunk again, and the law makes clear that the only people who will be allowed to drive again are those who no longer drink, and can show that they are likely to never drink again. In the context of a license appeal, the line in the sand has been drawn at no drinking, because people who don’t drink are exactly zero risk to drink and drive.

In the previous articles about the alcohol bias, I explained how it can result in “seeing” problems that aren’t there, or seeing those that do exist as worse than they really are. As a result, unnecessary counseling or treatment is often ordered by courts, or, when some kind of help IS warranted, what does get ordered may be far more intense than what is really needed by the person who has to go through it. I’ve pointed out that a rather general explanation for this is a pervasive notion in the court system that “it’s better to be safe than sorry.” In this article, I want to try and look at things from the court’s (safe) side of things.

Point-Counterpoint-B-300x300The fact that this “other side” can be examined in a piece about 10 times smaller than the larger examination of of the alcohol bias says something, to be sure. Even so, the courts do have some genuinely valid concerns. For as much as there is to dispute the basis of the alcohol bias in the court system, we should, in all fairness, consider the things that support it, as well. For example, as much as the alcohol bias is subconscious, every Judge is always aware that, when sentencing someone for a DUI charge, instead of ordering any kind of counseling or treatment, they can just send the person to jail.

In the blink of an eye, and given that choice, every person I have ever met would much rather go to all the counseling and meetings in the world, rather than get locked up. Although the end result can be imperfect, it is almost always the intention of the court system is to provide a DUI driver with whatever level of education or counseling he or she needs, or that will be beneficial to him or her. The underlying objective of the sentence in every DUI case is really two-fold: on the one hand, what’s ordered should be disincentive enough to convince the person to never drive drunk again, while, on the other hand, it should provide the appropriate level of education or/or counseling to address whatever issues may have led up to the DUI in the first place, in order to avoid a repeat performance.

In part 1 of this article, we began a summary overview of the alcohol bias in the court system. This 2-part article is meant to both summarize some of the key points of its 8-installment big brother, and, hopefully, convince the reader that there’s enough to all this to make it worth his or her time to read the larger piece. The alcohol bias underlies everything about Michigan DUI cases, and there’s no way to even touch upon its key aspects in any shorter format. The alcohol bias – the idea that most DUI drivers either have, or are at risk to develop a drinking problem, and should, therefore, be treated accordingly – is really the reason the DUI process in Michigan plays out as it does.

imagesWe left off, in part 1, by noting that the alcohol bias makes people in the court system “see” an alcohol problem even where there isn’t one, and to magnify any risk factors or actual problems that do exist so that they’re perceived as worse than they actually are. This, in turn, gives rise to the “better safe than sorry” mindset that is pervasive within the court system. Although it’s not a big deal to send ever 1st offender for some kind of preventative education, the alcohol bias has consequences well beyond just that.

In a certain way, the alcohol bias is almost self-powering. While there are plenty of things that can lead a Judge, probation officer, or anyone in the court system to “see” drinking problems, the ugly reality is that they encounter very little to ever contradict that notion. For example, the number of people who go to trial and successfully defend against a DUI charge in Michigan is so low, you have to read the numbers twice to believe them:

This article about the alcohol bias in Michigan DUI cases is not intended to be a “Cliff Notes” or a summary of the larger, 8-part article examining how it functions in the court system. If anything, I hope that what the reader finds here will motivate him or her to read all 8 installments of the larger piece. The alcohol bias, at its most basic, is the pre-supposition, within the court system, that essentially results in everyone going through a DUI being treated as if they either have, or are at risk, to develop a drinking problem.

BOTTOM_LINE_LOGO_0-66-284x300The bias generally operates beneath the consciousness of everyone working in the courts, even though it really is a controlling factor in how DUI cases are processed. The implication of the alcohol bias is the idea that most DUI drivers are risky drinkers, and should be treated as such. This notion is strongly supported by studies consistently showing that DUI drivers, as a group, have a statistically higher incidence of alcohol problems than the population at large. As true as that may be, the other implication, too often overlooked, is that plenty of people showing up for a 1st offense DUI case DO NOT have a drinking problem.

Rather than taking a chance of missing someone who either has an actual drinking problem, or  who is otherwise at risk for one to develop later, the courts believe that “it’s better to be safe than sorry.” As a result, just about every court, in almost every DUI case, requires at least some level of alcohol education, if not counseling and/or treatment for just about every 1st-time offender. The real-world effect of the bias is that anyone going through a DUI will, at a minimum, have to do some drinking prevention type “stuff.”

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 fall for the 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.

Blog-StandingonBooks-1000x667-217x300For 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 about the development, diagnosis and treatment of alcohol problems well enough to guarantee to win every initial driver’s license restoration or clearance case we take. In handling over 200 license appeals each year, we hear about and explore, 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 how all this works this, a person must be able to look past the alcohol bias.

In a driver’s license restoration appeal, we have to go over every aspect of a person’s drinking, right up to his or her decision to finally quit. In doing so, we hear all about the struggles, the false starts, and slips (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 from a drinking problem. 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.

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.

Magic-hat-wand-300x268There 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, and genuinely do not have any issues with alcohol. 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 simply declaring that your relationship to alcohol isn’t problematic 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.

ASGGSSGSGSG-225x300My 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.

AAAAA-300x293This 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.

102088255-stock-vector-hand-holding-banner-with-pay-attention-please-vector-illustration-300x251In 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.