In the part 1 of this article, we began our examination of the PSI process and the role of the mandatory written alcohol assessment in DUI cases. While the first installment was mostly a kind of overview, here, in this second part, we’ll zone in on the first of the 3 main things evaluated in a pre-sentence investigation; your background, upbringing and prior record, if any. I typically describe the whole PSI process as “the big 3,” meaning an assessment of where you’ve come from, where you are, and a recommendation about where you’re going. This is more than just a cutesy way of looking at it, though, because those really are the 3 pieces of the PSI puzzle, and they directly impact what the Judge will do to you in a drunk driving case. In the same way that how well or poorly you perform on the alcohol screening test figures into the kind of alcohol education, counseling or treatment you will receive (or not), your background and your current living situation are also evaluated as important factors in deciding what the Judge should do to you when you are sentenced for a DUI. Let’s break this down to make it clearer, and we’ll start with a hypothetical example:
Assume that Tipsy Tina was arrested for a drinking and driving offense in one of the cities in the 41B district court (Clinton Township, Harrison Township and/or the City of Mt. Clemens) and her original charge of OWI (Operating While Intoxicated) has been bargained down to OWVI (Operating While Visibly Impaired, often just called “Impaired”). She already pled guilty to the reduced charge, and her sentencing date has been set out about 4 weeks. She has been given a date to return to court in about 2 weeks (before her sentencing date) to meet with a probation officer for her PSI, and she must also complete the legally required alcohol assessment test, as well. We’ll get to the test later, because not only is it the single most important factor in determining what happens in a drunk driving case, it also requires its own, separate article to properly explain. Thus, we’ll begin with the first (“where you’ve come from”) of what I have dubbed “the big 3” and see how a person’s background, childhood and upbringing figure into all of this.
One of the easiest ways to demonstrate this is to compare yourself to someone else, so we’ll use poor, hypothetical Tipsy Tina for that purpose. As part of any PSI process, you’ll be asked to fill out some paperwork about your past. By and large, this means explaining where and to whom you were born, with whom you were raised, and how your childhood played out. As life goes, no matter who you are and how you came up, you probably consider your own background to be “normal,” so just take that as a starting point and then contrast your past with Tina’s. On her intake paperwork, Tina indicates that she was given up for adoption as a baby and was bounced around to various foster homes as a child. She admits that she was sexually abused throughout her childhood and that she dropped out of high school in the 10th grade. Not long after that, having already tried a number of substances, including tobacco, alcohol, marijuana, she became an IV drug user. By her late teens, she had been in trouble with the law several times and had not had any kind of stable living arrangement for several years. At age 20, she had a child, and then lost custody because she was sent to prison for 3 years, beginning at the age of 22. When she was sent to prison, she was diagnosed as having schizo-affective disorder. She reports that she recently discontinued taking her psychiatric medication because, although it helped with the “voices” she hears, she doesn’t like its side effects. This is her 1st DUI, but she has 3 prior misdemeanor convictions, including one for solicitation (prostitution) and 4 prior felony convictions, including home invasion and delivery of a controlled substance. As to her health, she reports many problems, including a worsening of the symptoms from her schizo-affective disorder (she’s suffering from more frequent auditory hallucinations) and she fears that she may be HIV positive, although she has not been tested for it since before her time in prison. She has not seen her child in over 6 years. Tina, as it turns out, is a train wreck…
The probation department isn’t going to ignore Tina’s past because it helps explain her ongoing relationship to substances and speaks directly to why she’s back in the court system, in trouble, again. The background I created for Tina in this example may sound extreme, but I’ve seen every single one of those things (and even several of them at once) in past clients. Even something much more benign, like a painful divorce of one’s parents during childhood, can turn into the kind of emotional baggage or unresolved conflict that causes a person to “self-medicate,” and use alcohol (or drugs), if only subconsciously, to anesthetize pain or to cope. And even if a person has “worked through” his or her past, the probation officer, cast into the role of amateur psychologist, will not ignore the possibility that those past events play some role in the present circumstances and will therefore recommend counseling. Better safe than sorry…
The larger point here is that probation isn’t going to analyze your past and then struggle connect the dots and see if you have any emotional baggage or unresolved “issues” from your past, but rather look at your past and just see if there are dots. If so, then maybe they are connected, or maybe not, but the safe course of action is to refer someone whose bad decision making in the present may be related to things in his or her past for professional evaluation. And while this may sound cynical (at least to those who have never been “milked” by the system before), once you are sent to be evaluated by someone, you can pretty much count on him or her recommending that you get some kind of help or education. This is not to imply that counselors and therapists are all crooked, but there is no income to be made by NOT providing services. After all, better safe than sorry…
I don’t know if it’s human nature or not, but it is commonplace amongst those that find themselves in trouble to sometimes “dig” for a little bit of sympathy. It’s kind of like, “look, I’ve had a few rough spots along the way; can’t you give me a little break here?” Instead of getting the break one is looking for, however, this ploy gives rise to the functional irony of looking for a sympathetic heart in the probation officer, only to find it, and also finding that in his or her benevolence, the probation officer wants to make sure a person gets enough “help” to work through any problematic remnants of the past. To put it more bluntly, a hard luck story that is believed will, more often than not, get you tossed into all kinds of counseling. The idea, in another setting, that a person has overcome past difficulties becomes, in a probation interview setting, a concern that maybe there are still things to be resolved. Best to let the professionals sort it out, because it’s always better to be safe than sorry. The translation here is that the probation officer, in his or her role as amateur psychologist, isn’t going to struggle with whether or not your past is an issue, but instead, will figure that if it even looks like it could be, then you should be sent for whatever kind of help you may need.
Of course, this isn’t even the half of it. You may have had the world’s most ideal upbringing, but nonetheless may still be the kind of person who is at risk to make the occasional bad decision. On the other hand, you might just be the kind of person who just gets in trouble a lot. Accordingly, it matters if a person has any prior criminal record, just like it also matters if a person has never been in trouble before. In the context of a DUI, one of the first questions is whether or not a person has any prior OWI convictions. Beyond the details of a person’s childhood and early life (“where you came from”), the probation department will always look whether or not he or she has ever been through the criminal court system before, and, if so, when and why. To some extent, the “when” is already factored in when, for example, a person is charged with OWI 2nd offense. Actually, the “when” is also relevant in a High BAC case, because the OWI with BAC .17 or more charge can ONLY be made in a 1st offense case, meaning that a person has not had a prior DUI within 7 years (or has not had 2 prior drinking and driving offenses at any point in his or her life). These are the easy examples, but there are also plenty of situations where I wind up having to explain to someone how and why a seeming dissimilar, old and/or unconnected conviction will figure into the probation officer’s considerations.
Probably the most common “issue” that comes up is when a person has an old drug possession (including marijuana), DUI or MIP case. The operative word here is old, because most people tend to instinctively understand that a relatively recent prior conviction is bad news. When a person has a case on his or her record that’s 6 or 8 or 10 years old, he or she will often want to shift the focus onto how long ago it happened. This is where I have to explain that, depending on the charge, having stayed out of trouble for those years can look more like just not getting caught again until now. In fact, in some, if not many cases, the probation officer and the Judge will look at something like a 7-year-old drug possession or MIP conviction, and draw a line from it to the current DUI and think (if not outright say), “this is how long you’ve had a problem with alcohol and/or drugs.”
There is no really diplomatically way to put this, but the idea is that when you begin to accumulate convictions of any kind, it looks like you are, at a minimum, a repeat bad-decision maker, and that alone is not a good thing. Even when a prior conviction (think of something like a domestic violence or retail fraud charge) is not a drug or DUI offense, the probation officer will want to find out if alcohol or drugs were involved. Of course, a really old conviction going back more than 10 years looks a lot more “remote” than one that is newer, but even an ancient DUI in your past is going to raise some eyebrows because it is well established that there is a much higher incidence of drinking problems among DUI drivers than there is among the population at large. As I heard it kind of put once, getting a DUI is kind of like getting hit by lightning; it can happen to anyone, but it’s highly unlikely. If someone is struck by lightning, it’s almost always a once-in-a-lifetime thing. When it happens again, there is a high probability that there is something more than just chance and bad luck going on.
And here, we run headlong into the reality of the court system’s inherent alcohol bias. The “system” knows that a DUI driver is far more likely to have a drinking problem than someone from the general population. Every 1st offender is going to have to almost “prove” that he or she doesn’t have a troubled relationship to alcohol (this is why I’m writing this article, why the whole PSI thing is so important, and why I spend the hours at an extra meeting with my each and every one of clients to prepare him or her for a pre-sentence investigation). When a person shows up with a prior drunk driving conviction, even from a long time ago, it’s not going to be overlooked, and you can count on that whole alcohol bias getting turned up a lot higher.
We could examine an almost infinite number of situations involving past convictions, and each would justifiably deserve its own analysis and treatment. We won’t do that, however, and can move on simply by noting that prior convictions do matter – some more so than others, but in all cases, they do matter, and I will examine them, in proper context, with my clients as we prepare for the whole pre-sentence investigation.
If there is a takeaway here, it’s that your past matters, much in the same way that who you are as a person matters. Where you’ve come from is important, and you need to be prepared to understand how everything, from where and to whom you were born, to where and with whom you were raised, figures into your PSI. Of course, beyond your distant past, your criminal history matters, as well. For everything I’ve said about how prior convictions can influence how you’re perceived, the lack of any criminal record matters, as well. Just like (okay, maybe not just like, but at least “kinda like”) your first love, there will never be another “first” where you are a newbie in the criminal justice system who has never been there before. Just like in love, no matter how long it has been since that first encounter, you’re no longer a virgin the next time around. For those who can boast never having been in trouble before, it’s the one time you can present yourself as having made an out-of-character mistake in judgment. That should be exploited to its fullest, and if I’m at the helm, it will be.
There is a lot to all of this, and my goal here isn’t to try and present any kind of comprehensive overview (that alone would be a monumental undertaking, and make for a long, boring article), but rather to point out that the whole “where you’ve come from” part of things is very important in the PSI process, and we need to spend time with it and work on it – not just pay lip service to it.
As much as it can be said that a person’s past is important in understanding his or her present situation, in the context of a PSI, so are the present circumstances of a person’s life in the overall context of a DUI. We’ll stop here for now, and come back in the next installment to look at how the “where you are” component of a PSI is equally as important as “where you’ve come from.” Later, we’ll take a separate look at the key factor in a DUI pre-sentence investigation, the written alcohol screening test. Even though the alcohol screening test stands as the single most important determinant in what will happen to you in a DUI case, it is best examined in the larger context in which you’ll encounter it – the pre-sentence investigation process.