Success in a DUI case means what doesn’t Happen to You

The best outcome in any DUI case is to get the whole thing dismissed, or otherwise beat the case, so that nothing happens to you. Most people, however, aren’t so completely lucky. Short of nothing happening as a result of a DUI arrest, the less that happens to you, the better. In a very real way, success in a Michigan DUI case is judged by what doesn’t happen to you.

Less-is-More-Final-1.2.jpgWe can see that sometimes, in a high-profile DUI case, a Judge will order community service in order to remind a celebrity that he or she is not above the law, and subject to the same rules as everyone else. Getting caught speeding in your 2014 Lamborghini after having a had a few too many doesn’t entitle anyone to any better treatment that someone caught weaving on I-696 in his or her 2004 Chrysler Sebring. In the real world, less community service (or even none), and really less of everything, is the yardstick by which “success” is measured in terms of a DUI outcome.

You’ve probably already figured out that unless your DUI gets thrown out of court, you’re going to wind up on probation. This is true even in 2nd and 3rd offense cases. Interestingly enough, there are still a few places where, at least in a 1st offense DUI, if everything is done just right, a person can either skip probation altogether, or, at least wind up on what’s called “non-reporting” probation. Non-reporting probation means that all you have to do is not get in trouble for however long the Judge orders, and everything will be fine. In a recent 3-part series of articles, I examined what “probation” means, and I reviewed the different “do’s and don’ts” of probation. Here, it’s more relevant to talk about how you get on probation, meaning the process by which you wind up standing before the Judge and are ordered to follow that list of “do’s and don’ts.”

Michigan law requires that, in a DUI case, before the Judge can pass sentence, you must complete an alcohol screening (written test). This is handled by each court’s probation department, and is part of a larger process called a “PSI,” or pre-sentence investigation. The “PSI” can also simply be called the “screening,” or “assessment.” No matter what it’s called, it boils down to the same thing, in every case, and in every court. Once your charge has been resolved, and before you come back to court to be sentenced by the Judge, you have to be interviewed by a probation officer, who will also hand you a written test to fill out. This test is scored, numerically, and the probation office compares your score to a scoring “key” to determine what kind of risk you present in terms of having or developing a drinking problem. This is hardly any kind of clinical assessment, but it is, unfortunately, exactly how the law does things. Even so, we can make it better…

In fact, the National Center for Biotechnology Information and the National Institute of Health use the following definition of “assessment” in the criminal justice setting, emphasizing the role of trained counselors and professionals in the process; it is obvious that a local court’s probation officer falls miles short of any such qualifications:

Assessment–A process for defining the nature of a problem and developing specific treatment recommendations for addressing the problem. A basic assessment consists of gathering key information and engaging in a process with the client that enables the counselor to understand the client’s readiness for change, problem areas, any diagnosis(es), disabilities, and strengths. The assessment process typically requires trained professionals to administer and interpret results, based on their experience and training. A clinical diagnosis has important legal ramifications since judges tend to rely on assessments to identify an offender’s needs and risks, and to determine the offender’s disposition.

You can take this to mean that your DUI case assessment, by comparison to what was outlined above, won’t be anything nearly as clinical or professional. In addition to doing the assessment him or herself, the probation officer will interview you, gathering information about you, including your background and your current living situation, and then use this information as well as the results of your screening to put together a written sentencing recommendation to the Judge advising him or her what should happen to you. This is required by law, and, more than anything else, determines what will happen to you. Anyone who has had a prior DUI knows all about this. More importantly, I know all about this, as well. Who could be better equipped to help you than someone involved in the highest levels of addiction studies, and who knows every nuance of every diagnostic criteria? How about a DUI lawyer with that skill set?

Being a DUI lawyer is great, but being I am also formally involved in the post-graduate study of alcohol and addiction issues at the University level; that’s even better. I can make sure you never wind up defending against a drinking problem you don’t have. And make no mistake about it, when you’re facing a DUI, there is an inherent tendency to think you’re at much higher risk for that kind of problem. In the event your drinking has become an issue, I can make sure that you don’t get ground up in the unthinking machine that in its “one-size-fits-all approach, will stick you in endless counseling and support meetings without determining what’s really best for you and fits in with your life.

It’s at about this point that many people want to explain that no matter how things might look, they don’t really have a problem. Before you run with that, let me share something that might change how you understand the “system,” and how it perceives you. Every single Judge and probation officer (and substance abuse professional) knows that if you take a sample of 100 people who have either had a DUI, or are currently dealing with a DUI, and then you take another sample, from anywhere, of just 100 people at random, you will always find a significantly higher percentage of alcohol problems amongst the DUI group than amongst the people chosen at random. You cannot expect the court to not know this, or otherwise ignore it. You can, however, make sure that you hire a lawyer who knows how to protect you from the bias that inevitably attaches when you are facing a DUI.

I am that lawyer. I think it’s great that some lawyers attend a class and learn all the mechanics of the breathalyzer machine at the police station. If anyone ever need a repair done to their breathalyzer unit, then you know who to call. In all seriousness, though, unless your case gets tossed out because the police screwed things up, that knowledge won’t help you very much as your case actually goes through court. I’ve spent years and tens of thousand of dollars learning the nuances of things like the proper diagnosis of and the spectrum of viable treatment options for a drinking disorder. When I walk into a courtroom, I am the foremost expert on the subject of alcohol, and that translates directly into making things better for you in your case.

On paper, this all sounds great, but what should you really make of it? First, you need to know that the alcohol screening test you’ll take in the probation office is not a particularly reliable diagnostic tool. It can’t be, because the person giving it to you isn’t a substance abuse counselor, so the kind of screening instrument he or she uses simply cannot require any clinical ability or training to interpret. This is really about the same thing as the difference among urine tests. If the probation officer has you provide a urine sample, and then uses a test strip and waits for it to turn a certain color or not, you know you’re dealing with an “OTC,” or over the counter test. This is miles away, in terms of accuracy or scientific reliability, from the kind of test that’s performed by a lab technician using calibrated and precise instruments. This is also a perfect comparison for the level of accuracy and reliability you’ll get from the kind of written alcohol screening test you’ll encounter at the probation department.

This is significant, and, if handled correctly can actually be used to your advantage. Yet before we get too far with this, you have to remember that the Judge is not an expert in this stuff, either. This is where it is crucial that lawyering skills at least equal clinical understanding, because the entire point of a lawyer addressing the court is to persuade the Judge to do and/or not do certain things to you. Lose the Judge’s attention, and you’ve lost your argument. Confuse him or her, and you’ve done just as poorly. In many of those cases where the probation department just “suspects” problem drinking, I can at least convince the Judge of the need for a real clinical assessment (in some cases, I may already have had my client get an independent alcohol evaluation) and spare my client having to otherwise endure expensive and inconvenient counseling and/or classes.

As I noted earlier, success in a DUI is measured by what doesn’t happen to you. My job is to deflect as many of the consequences possible. I have to protect my client’s ability to drive, and keep him or her from being overloaded with things like community service and classes and counseling and breath or urine testing. Staying out of jail is always the first order of business, but at the level of representation I provide, that’s usually not even on the menu, so my efforts and our attention will be directed to avoiding many of the other things that can be hurled at a person dealing with a DUI. In that sense, less is truly more…