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1st Offense DUI in Michigan – Make it a “One and Done” – Part 1

One of the most distinguishing features of how my firm handles DUI cases is that we try and educate our clients about the whole DUI process, and also help them explore their assumptions about alcohol to make sure that they don’t find themselves in the same legal predicament again. Of course, everyone says it won’t happen again, but even the best laid plans sometimes go awry, so we add in a little protection, just in case. We truly believe that our obligation to our clients goes beyond just helping them “get out” of a legal jam, and compels us to help each one as a person, with an eye toward protecting their future.

22222222-295x300A DUI case IS a big deal. From a purely legal point of view, it’s all in a day’s work for us, as DUI lawyers, to help our clients avoid most of the negative consequences from an OWI charge. However, because of our experience handling DUI cases day-in and day-out, and the things we know, we feel morally obligated to do better than just that, and do more than just damage control. Handling the legal aspects of a DUI is really the bare minimum a person should expect from a lawyer, in the same way that closing up a cut is the bare minimum a patient should expect from an emergency room doctor.

In that regard, just like a better doctor will want to stitch the wound carefully, so that it heals with as little scarring as possible, a better lawyer will want to make sure the all of the client’s interests are protected, including many the client may not even realize he or she has while in the the thick of things. Although there is a lot to this, key in every case is helping the client to understand both the legal implications of the current case, and how his or her future relationship with alcohol needs to be adjusted in some way or ways to make sure there isn’t another, and that this DUI is a “one and done.”

This goes beyond simply saying, “don’t drive drunk again,” or just being told not to get another DUI, because a 2nd offense really sucks, and you’ll lose your license. After having handled DUI cases for nearly 3 decades, I’ve learned a few things, and one lesson that’s really important is that to be the best kind of lawyer, I have to look my client in the eye and be honest with him or her, and to speak candidly about recognizing what went wrong in this case, so there never is a repeat performance

Everyone who picks up a 1st offense OWI will try and explain how and why it happened this time, and will also be adamant that this will be a one-time deal. The day I was finishing this article, I received an email from someone facing a 2nd offense; I have reprinted it word-for-word below (although I have bolded middle sentence):

I guess I just want to know what I can expect such as the likelihood of jail and what I can do to get the best possible outcome. This is my second offense within seven years. I know this isn’t important, but I rarely drink and when I do it’s purely social. I’ve just made the choice to drive afterwards, twice now. I’m still willing to do anything I can to avoid jail and hopefully not have to take a year off of school just because of this DUI.

To be sure, most of the time, a 1st offense DUI just “happens,” and isn’t indicative of any kind of underlying drinking problem. Still, in terms of risk, it means that the person, on at least that one occasion, somehow “lost” the ability to properly self-regulate, and either stop drinking soon enough, or at least know they shouldn’t be driving and instead call an Uber, or otherwise get a ride.

The court, of course, wants to and will do everything it can to minimize that risk and make sure that it never “happens” again.

One important thing my team and I do with a client facing a DUI is to examine the larger situation in which it occurred: If it was a matter of overindulging while out with friends, it may be time to consider scaling back a bit on that kind of activity, or maybe not hanging out with that particular group so much.

If a person had too much booze at a special event of some sort, then he or she needs to consciously take that into account for the next outing.

Whatever else, we have to carefully examine what happened this time to make sure there is never a next time.

As a side note, when a client’s behavior is indicative of having been rip-roaring drunk and his or her BAC was NOT astronomically high, then we’ll strategically use that disparity to show that our client is something of a lightweight when it comes to drinking (in a DUI, that’s ALWAYS a good thing), and that his or her actions, more than anything else, show that he or she does not have a big drinker’s tolerance.

On the flip side, if the client’s BAC was high, then we’ll point to those obvious signs of intoxication in order to mitigate any notion that he or she has developed a tolerance to alcohol.

This is the kind of stuff that’s great to use on the legal end of things, but as I noted, as far as the person him or her self is concerned, we want to find out what led the client to drink in such a way as they did on this occasion in order to make sure he or she has the insight to prevent if from happening again.

We want to help the case, but we also want to help the person, as well.

In a perfect world, every client would want that, as well, but there are some people who just plain aren’t interested in anything beyond making their legal situation better. Because of my clinical background (I completed a formal post-graduate program of addiction studies), I also know that one of the worst things anyone can do is force this kind of issue, so we don’t.

In other words, we’re here to help that way, but only if someone wants it.

Unfortunately, however, the court system does send everybody for some kind of “help,” whether they need it, want it, or not. This goes well beyond being a waste of time and money, and can actually have the effect of backfiring, and be counter-productive in terms of someone being able to take an honest look at their relationship to alcohol at a later time.

However well-intentioned, sending a person who doesn’t have a drinking problem to AA isn’t any kind of “help.” AA is not a preventive measure for someone who doesn’t have the makings of a drinking problem, anymore than taking chemotherapy is a preventive for cancer.

As misguided as these efforts may be, they make more sense if you understand that anyone walking into court for a DUI will face something called the “alcohol bias.” The reader would do well to explore the alcohol bias section of my blog, but the short version, here, is that DUI drivers, as a group, have a significantly higher incidence of alcohol problems than the population at large. Here’s what I mean:

If you randomly select a group of 1000 people, with the only condition being that they all be licensed drivers, and called them “Group A,” and then round up a second group of 1000 people, with the only condition for them being that they are either currently facing, or have previously had a DUI, and called them “Group B,” it will always be the case that “Group B” has a higher rate of drinking problems than “Group A.”

That’s a fact that has been repeatedly validated, and never escapes the court’s awareness.

However, it’s also a real world fact that, if you rounded up a group of 1000 licensed drivers and sat them in a room, and then asked everyone who has never once drank a little too much and then driven a vehicle to stand up (and if they were honest about it), a whole lot of people would remain seated.

This simple fact is that, often enough, a DUI just “happens,” and there’s nothing more to it, and nothing else required to prevent it from ever happening again. The emotional stress of getting arrested is often more than sufficient to make the whole experience a “one and done” deal for most people.

Even so, that won’t stop the court from taking whatever steps it feels will best ensure that a person is disincentivized from ever doing it again. And make no mistake, every court is going to take some steps.

The real risk here isn’t getting locked up or anything like that. In fact, with the possible exception of one local Judge, almost nobody gets sent to jail for a 1st offense DUI in Wayne, Oakland or Macomb Counties.

Instead, the real risk is being ordered into all kinds unnecessary counseling and/or treatment.

To prevent our clients from getting slammed with that kind of stuff, and to otherwise protect them from being sent to some kind of program that is just the wrong fit, one of the most important things we do is make sure to thoroughly prepare each and every client for the mandatory written alcohol screening he or she will take as part of his or her case. By law, a person must be “screened” for either the presence of, or the potential to develop a drinking problem, prior to being sentenced.

This screening is done by completing a written test that is numerically scored. That score is then compared to a scoring “key.” Based upon that number alone, it is determined that a person either does or does not have an alcohol problem, or (and this is the biggest hazard for 1st offenders), otherwise is seen as being “at risk” for such a problem to develop.

Generally speaking, the more points a person scores, the worse things are. Therefore, having less points is better. Unfortunately, the way these tests work, any person taking it after a DUI arrest already starts out with a handicap because he or she is going to have to answer yes to at least 1 question that’s some version of “Have you ever been arrested for an alcohol-related driving offense before?”.

The whole screening process is a huge subject in its own right, and there are very real concerns about having a non-clinician (usually a probation officer) administer a test that essentially arrives at a diagnostic conclusion as to whether somebody does or does not have an alcohol use disorder, or is otherwise at risk to develop one. Moreover, the “diagnosis” that’s reached, however accurate or inaccurate it may be, is then followed up with what those same non-clinicians believe to be the appropriate educational or rehabilitative measures.

In a very real way, this results in non-clinicians playing clinician.

The alcohol screening is all part of a larger process called a “pre-sentence investigation,” or PSI. The PSI requires that, in addition to being screened, the person also be interviewed by a probation officer who gathers information about his or her background, the facts of the case, and thereafter generates a written report and sentencing recommendation (that included what they believe to be the appropriate educational or rehabilitative measures) that is forwarded to the Judge.

For as deep as all this can get (and it does get deep), the simple reality is this: every Judge in every court follows the written sentencing recommendation of his or her probation department very closely. There is no case in which some Judge is going to deviate, in some “wholesale” manner, from the recommendation of his or her probation department. Thus, you’ll never find a Judge who orders a sentence significantly different from what is in the sentencing recommendation.

This means, then, that if the probation officer thinks the person has, or is at risk to develop a drinking problem and should go to counseling, you can essentially bank on the Judge ordering it.

Therefore, the key to success in a DUI is getting a better, more lenient recommendation in the first place. Accomplishing this requires that a person be thoroughly prepared for the alcohol screening test and the PSI.

Remember, success in a DUI case is always best measured by what does NOT happen to you.

We’ll stop here and resume our discussion in part 2.