The role of “Addiction” in Michigan DUI, Driver’s License Restoration and Criminal Cases

As a Michigan criminal, driver’s license restoration and DUI lawyer, the whole concept of addiction is pervasive in my work. Each and every day, I deal with people across the substance abuse spectrum, including those who have alcohol and or drug problems and don’t know it, some who won’t admit it yet, but may be in the midst of struggling and/or coming to grips with their problem, and others who are in recovery. In addition, I deal with plenty of people who do not have any kind of problem, no matter how things may look in the context of any particular circumstance or case. Not very long ago, I wrote an article about how the whole court system has a pretty strong bias in DUI cases that tends assume that everyone charged with a drunk driving has a drinking problem, or at least a significantly increased risk of having one. In a very real way, this is a little more than an extension of this whole new focus on “addiction.” Addiction has become the new buzzword in criminal and DUI cases, and one of the newest marketing focuses just about everywhere. I have seen a growing number of ads on TV offering to help people break the cycle of alcohol and/or drugs. On this subject, I can speak with some real authority because I have an extensive, post-graduate University education in the field of addiction studies. Thankfully, my studies in this field predates its recent popularization.

Thumbnail image for 606e84581ee0736db8b3783711efd385.jpgThis matriculation enables me to understand substance abuse problems from the clinical side of things as well as the legal. To me, it’s kind of like having both sides of a Q-tip. It goes without saying that, for example, in a DUI or drug possession case, any lawyer smart enough to boil water wants to avoid having her client seen as having an alcohol or drug problem in order avoid as many negative consequences as possible. On the flip side, it doesn’t take a legal scholar to understand the value of shielding the client in the cloak of having a “disease” or problem when doing that will make things better in ways like avoiding jail. To put this another way, in situations like a 1st offense DUI, the goal is to avoid having the client look like he or she has any kind of problem (or even potential problem) with alcohol. In that situation, the word “addiction” is bad, because no one wants to be loaded up with otherwise avoidable classes, counseling or treatment. By contrast, in a 3rd offense DUI, the word “addiction” is useful, and will almost certainly be invoked to deflect anger from the fact that a person is a repeat offender. Instead, the idea is to have such a client perceived as more like the victim of a problem who needs (and wants) help, rather than a “criminal.” In the context of a winning Michigan driver’s license restoration case, it is essential that the person be able to prove genuine sobriety. Accordingly, anyone who wants to win back his or her driver’s license must begin the process with a solid understanding of his or her addiction, as well as recovery from it.

It doesn’t take any real degree finesse for a lawyer to take a 2nd DUI offender, for example, and tell him or her to get into counseling, and then just show up in court and try and play the “recovery” card. Unfortunately, the word “addiction” has been thrown around so much recently that it has practically lost any subtlety it used to have. The same thing happened over the years with the use of precious metal terms. At one time, having any kind of “gold” credit card (or membership or other privileges) was the best you could do. Then, gold wasn’t good enough, and we were introduced to platinum. Not long after that, when gold was forgotten and platinum has lost its luster, things went to titanium. Now, the world is focusing on addiction, and it seems like the word is being used in endless situations. The setting we’re concerned about in this article is how we can use “addiction” (including a lack of it) to make things better for people facing a criminal or DUI charge, as well as the role it plays in a successful driver’s license appeal. Let’s see how this all works in some real world situations:

1st offense DUI, including High BAC charges: You want to cruise through the court system as easily as possible, and with as few consequences as possible. While going to jail is never really a threat, getting caught up in endless and expensive counseling is, and that’s what we need to avoid. This is one of the reasons I spent tens of thousands of dollars and so much of my time learning about the development, diagnosis and treatment of alcohol and drug problems: To help my clients avoid all of that, and everything else that we can as well, especially in 1st offense and High BAC cases. Here, the goal is to avoid the court system’s inherent “alcohol bias” and to have a deep enough clinical understanding to balance against the acknowledged tendency toward over diagnosis.

2nd offense DUI: When facing a 2nd offense drinking and driving charge, the possibility of jail becomes much more real. In most cases, it can still be completely avoided, but here is where you have to gracefully navigate between the competing ideas of coming to grips or otherwise struggling with an addiction on the one hand, and insisting that you don’t have a problem on the other. There is no Judge alive who will think that a 2nd offense drunk driving happens to a normal drinker, yet running full force into this whole addiction thing can land you in enough counseling and treatment to feel like you should get a PhD, and not just a certificate of completion. Leaving out the very important issue of sobriety court (something that should at least be looked at in every 2nd and 3rd offense case), the safest passage through uses language like “problematic” (think “risky”) or “troubled relationship to alcohol.” Instead of diving deep into terms like abuse, addiction and dependence, we opt for theses safer, shallower waters.

3rd Offense DUI: Here, with few exceptions, there is a drinking problem that can be safely described as an addiction. Just as no Judge will see a 2nd offense as anything less than evidence of a problem with drinking, there is no Judge who will ever believe that someone charged with a 3rd offense drunk driving doesn’t have a problem serious enough to be called an addiction. Is it theoretically possible for someone to have 3 DUI’s that are far apart and not really be an alcoholic? Yes. Is there a Judge who will ever buy that? Absolutely not. And this really goes to part of what you pay a lawyer for. A younger lawyer, hungry for business, may not want to disagree with a paying client who insists that no matter how things may look, he or she isn’t a big drinker. A veteran lawyer, like me, can sidestep that whole argument and point out the reality that I just did a few sentences before: There isn’t a Judge out there who will believe anything other than that a 3rd offense DUI is proof positive of a serious problem and a troubled relationship to alcohol. Let’s say things that will make the situation better, not worse.

Driver’s License Restoration Appeal: In a driver’s license reinstatement case, the whole notion of addiction is a given. As a Michigan lawyer who concentrates heavily in driver’s license appeals (and guarantees to win every case I take), it is a prerequisite that any client of mine not only acknowledge his or her problem with alcohol, but also that he or she must have honestly quit drinking and be committed to lifetime sobriety. The whole purpose of a license appeal, after all, is to determine whether someone who has lost his or her license for multiple DUI’s presents a low to minimal risk to ever drink again, and then be put back on the road. That means, specifically, that he or she has both the commitment and the tools to remain completely alcohol free for life. The Michigan Secretary of State will NEVER return a license to someone who presents any risk of ever drinking again. Forget any notion of drinking and driving, the inquiry focuses on drinking alone, because someone who is a safe bet to never drink again is an equally safe bet to never drink and drive again. In this forum, my understanding of the whole panorama of recovery processes is invaluable.

In the real world (one of my favorite phrases), the majority of people who get and manage to stay sober, and, by extension, win back their driver’s licenses, are not actively involved in AA. Many have been to AA, but most are no longer active in it. There are as many ways to get sober as there are sober people. Understanding the ways normal drinking can become pathological (even if it is infrequent, or what is sometimes called “binge drinking”) and the ways a person comes first to recognize and then overcome requires directed and specific study, and I’m glad I have it, as, I imagine, are my clients, who know that by hiring me they are guaranteed to be able to slide a valid license back into their wallets.

Criminal cases: In the larger context of a “criminal case,” the concept of addiction is much more fluid. Otherwise good people get caught up into all kinds of situations, from embezzlement to prescription fraud and drug possession cases, all because of an underlying addiction. Yet not everyone caught with drugs has a drug problem. And let’s not forget that alcohol plays a major role in many criminal charges. The same general observation made concerning DUI cases apply to any criminal case where alcohol or drugs are either directly involved or even merely implicated. The idea is to get through a case with as few consequences as possible. My job is, of course, to help my client do just that. Thus, if we can avoid any conclusion that the person has an underlying problem with alcohol or drugs, then that will certainly limit what happens to him or her. If there is a problem, or even if it is merely inevitable that the court will conclude that there is one, it usually is most helpful to have that problem perceived as less, rather than more severe.

Let me be clear about this: I do not mean that a person should get anything less than the appropriate help for his or her problem, but it should go without saying that the best kind of help is NOT the kind that obligates some therapist or company to monitor him or her and report everything back to the court. If a single man is seeing Carl the counselor every Thursday on his own, and one day he meets Lovely Lisa, and decides to ask her out, and the first chance for them to get together is on Thursday, then when the fellow goes back in 2 weeks later, he can tell Carl why he missed last week and they can laugh about it. If the single guy is seeing Carl by order of the court system, that missed appointment can wind up becoming a probation violation and subject him to all kinds of trouble, including jail.

When there is a problem, it also helps to have a lawyer who understands that there is a whole, wide spectrum of counseling and treatment options beyond the usual IOP (Intensive Outpatient Program) and 12-step support groups. I remember when, already a lawyer with over 20 years experience, I was in graduate school for my post-grad addiction studies program. At one point, it was said, just a matter of fact, that the American judicial system is at least 10 years, and more often 20 years behind modern treatment protocols and understanding. I felt insulted for my profession and wanted to speak up and defend it, but instead, I chose to remain quiet and see how this played out. Of course, as I learned, the court system IS way behind the curve. You’ll find some Judges ready to order 4 AA meetings a week to someone who will clearly not take to that program, but who could, potentially do very well in the right one-on-one counseling. If the lawyer doesn’t know this, and doesn’t know the client, then all he or she can do is stand there and nod in agreement as the Judge makes such a blunder.

As we’ve seen, and the reader has no doubt heard, “addiction” is a new buzzword. Our discussion here hasn’t broken any new ground, but we’ve certainly looked at how the very term “addiction” has been slapped around like cheap paint on the side of an old barn. We all fall into this trap in some way or another. I will often ask for a “Kleenex” when what I mean is a facial tissue. “Kleenex” is a brand, not the product. I do (and so do many others) the same thing with glass cleaner. I’ll ask my wife where she put the “Windex,” and she’ll remind me we only have “Glass Plus” in the house. The problem is that addiction is a problem, and, by definition, a problem that is rather well advanced. Addiction is not a cover-all phrase for a mere troubled relationship to alcohol or drugs, or the abuse of them. Instead, addiction implies some level of dependence.

In the context of a criminal, driver’s license restoration appeal or DUI case, this broader notion of addiction may be relevant, but not necessarily accurate. As a lawyer with a formal background and education in addiction studies, I help cut through the confusion in a way that spares you from getting stuck in counseling or treatment that might otherwise seem unavoidable. I can help the person with a real problem find the treatment that works, and that won’t break the bank or consume his or her life. When it comes to those seeking restoration of driving privileges, it is as simple as guaranteeing that, if you have really quit drinking, I will win your license back.

However you cut it, the very term addiction can either be a good or a bad thing to your case. Make sure that if it is used, it is used in a way that will help you.