There is one, specific step in the DUI process that affects the outcome of each and every case far more than any other. In fact, this step is really the most important one, in terms of what actually happens to you, and its direct relationship to actual results in a drinking and driving case cannot be overstated. Most often referred to as the PSI, but variously called the “screening,” “assessment,” “alcohol assessment,” “substance abuse assessment (or screening)” or “pre-sentence investigation,” it is what takes place right before a person is sentenced by the Judge. It is here that you complete a written alcohol use screening instrument (think of it as a “test”), fill out forms and provide information about your background, current life situation, your version of the facts of the case, and then go through an interview by a probation officer, who will ask additional questions. After you’ve taken the test, provided all the requested information and completed the interview, the probation officer must write up a sentencing recommendation (this is required by law) for the Judge, advising what should happen to you at sentencing. For everything that can be said about this, here is the bottom line: Most Judges follow these recommendations like a blueprint. In other words, what’s recommended here is – with very little exception – what’s going to happen to you later on. In this multi-part article, we’ll examine the PSI and the recommendation that follows, and what can be done to make the outcome of your drunk driving case better.
Over the years, court probation departments have been tasked with completing PSI recommendations. Because this job has been assigned to them, the probation officers who staff these departments have developed and, perhaps more importantly, have been perceived to have developed, a real expertise in assessing DUI drivers to see if they have, or are at risk to develop a drinking problem (or not), and to know all the educational, counseling and treatment options best suited for any particular case and person in order to prevent another drunk driving incident. This sounds complex, and while there is a lot to it, our examination will ultimately focus on the simple reality that how well or poorly you do at this PSI stage determines what kind of sentence you will receive from the Judge. This is a topic skipped over by most lawyers because it is deep, does not involve any specific legal knowledge or skill and is just otherwise easy to ignore. Unless, like me, you’re inclined to take things apart to see how they work, the whole PSI process seems impenetrably closed-off, because, indeed, it is closed-off; the PSI is done entirely by the probation officer and the only other party in the room is the person going through the DUI. On the day you come back for sentencing, the PSI report and its recommendation is provided to you and your lawyer, and the two of you are REQUIRED to read it over, and note any corrections that need to be made to it. Once your case is called for sentencing, the Judge will ask your lawyer if the two of you have reviewed the report, if it is factually accurate, and what comments you have as to the sentencing recommendation. Here is where I, as a DUI lawyer, part company, in a very big way, with most of my colleagues who essentially ignore this critical step, precisely because I am that guy who takes things apart to see how they work, and I know how proper guidance here can have a direct and substantial impact on making things better in a DUI case. Even though I always have the PSI in mind as I handle a case, I also have a separate 1 to 2-hour meeting with every client right before he or she fills out any paperwork or goes in for the interview with probation to complete his or her pre-sentence investigation.
Most lawyers show up on the day of sentencing, ready to read the PSI report and then make a “pitch” to the Judge regarding its recommendations. The idea, of course, is to get the Judge to “take it easy” on the client. Here is something you can take to the bank: It’s way too late to change the outcome of your case by arguing against the recommendations in the pre-sentence report when you’re standing in front of the Judge at sentencing. And to be perfectly clear, let me repeat and properly emphasize this: It’s WAY too late to have any real impact after the report and recommendation has been written up by the probation officer. I often say that 99% of all Judges follow these recommendations 99% of the way, and that’s probably an understatement, if anything. In order to change the outcome of your case, you need to directly influence the recommendation itself, and that begins long before you ever pick up a pencil to take a written alcohol screening test or ever sit down to speak with a probation officer. It begins when you choose a DUI lawyer, and this is where I can help the most. Throughout this article, we’ll look at how the court system’s inherent alcohol bias and the work experience of probation officers and Judges directly affects all of this, but before we get to that, we need to make clear that when your lawyer is asked to make any comments about the recommendations contained in the PSI report, the only real latitude he or she has to convince the Judge to ignore or do something different from what has been recommended is to show how that recommendation or suggestion is just plain wrong. Anything less than that just sounds like (and is certainly perceived as) whining from someone unhappy with the consequences of his or her drinking and driving conviction. Let’s see what all that means…
First, you have to understand that a main idea behind having a PSI is that the Judge does not really have the time, much less the specific expertise, to evaluate every person standing before him or her for a DUI and determine if the person has, or is at risk to develop, an alcohol problem, and to figure out what kind of sentence will keep him or her from doing it again (short of just locking everyone up). In most other states, before a person is sentenced for drunk driving, he or she is evaluated by a substance abuse counselor who has the training and experience to diagnose whether or not he or she has, or is at risk to develop a problem with alcohol, and if so, to recommend the most appropriate forms of education, counseling or treatment. And while this is critically important (and, as we noted, required by law), a substance abuse counselor is really not a corrections officer, meaning the person who figures out what kind of punishment and supervision a person needs to deter him or her from re-offending. As much as there is a clinical component to DUI cases, there is also a criminal justice component, as well. Therefore, in those places where a substance abuse counselor evaluates a person to determine if his or her relationship to alcohol is problematic, a probation officer must also evaluate the person’s background, including any prior criminal record, the facts of the case, as well as the findings and recommendation of the substance abuse counselor and use all of those in his or her sentencing recommendation. In some courts (none here in the Detroit area), both the counselor and the probation officer submit their own written findings and recommendations; the substance counselor focusing on the clinically rehabilitative, and the probation officer concentrating more on the punitive. In the Detroit area, the probation officer does all of this him or herself in that one report we call a “screening” or PSI.
It is not uncommon for a probation officer to have to dig around a bit to learn relevant things about a person and his or her particular case. Perhaps the person could have lived out of state and maybe a driving or criminal record needs to be run from there, or maybe there was a passenger in the car, at the time of the arrest, whose very presence there is suspicious in some way or another. There are a million things beyond the drunk driving incident itself that could influence the kind of help, if any, or punishment a person needs. Moreover, a Judge is not supposed to see any kind of police report unless and until after a person has been convicted, so without the input from a PSI report (which typically contains a brief summary of relevant details from the police report) from probation, every Judge would have to spend hours and hours on each case figuring everything out, and then wind up having to play both amateur substance abuse counselor and amateur corrections officer in order to figure out what to do. As it has evolved, what is considered the relevant and distilled information from both the clinical and corrections perspective is given to the Judge in the form of that PSI report, along with its sentencing recommendation that, at least in theory, takes everything into account. From this point forward we can skip worrying about how and why this developed the way it did, and instead go right to the simple reality that the whole PSI/probation thing is just is the way it is, while acknowledging that most Judges follow these recommendations pretty much to the letter, so any plans or preparations must focus on that, and not how things “ought” to be.
In the Detroit area, the probation officer, because he or she is the one to administer and then “score” the written alcohol screening test, must also, to some extent, fulfill the role (one might cynically say “play” the role) of substance abuse counselor. In the same way that although a home drug test isn’t any kind of laboratory standard for accuracy, it will let parents know if Little Timmy is smoking weed, the kind of alcohol screening instrument typically used by most probation departments won’t win any awards for clinical reliability, but is good enough, most of the time, to get a general idea of who has a drinking problem. Think “over the counter,” and you’ve hit the mark for the quality level of these tests. Although the whole alcohol screening thing takes place in an environment (the court system’s inherent “alcohol bias”) where over-diagnosis is the norm, as a loose, general measurement of whether a person is a problem drinker or not, these tests will do – and they’ll have to do, because they are what is used, and they are all you’ll get.
Back in the clinical world, a substance abuse counselor tasked with diagnosing whether a person has, or is at risk to develop a drinking problem will typically have him or her complete a written assessment, and then follow up with verbal questions to assess whether or not a there is a drinking problem, and, if so, how serious it has grown. The questions asked are usually based upon the counselor’s substance abuse training and experience in assessing and treating alcohol and drug problems. Sometimes, the kind of written test used in a genuinely clinical setting is specialized, requiring not only that the person administering and interpreting (i.e. “scoring”) it to be a trained counselor, but also be trained and certified by the testing organization that publishes the test, as well. Although the training to do this kind of testing is a certainly more involved, this is kind of like how police officers must be trained and certified as breathalyzer operators. A regular citizen just can’t step up to the breath testing machine in the police station, press the “power” button, wait for everything to light up, and then start testing suspected drunk drivers. If you’re reading this to be a long-winded way of saying that the kind of alcohol assessment done by probation officers isn’t very clinically solid, then you’re right on track. To put this in proper perspective, and before we get ready to really start analyzing things in part 2, let’s back up and recap:
Taking a written alcohol assessment and sitting for an interview with a probation officer is required after the plea (or conviction, if there is a trial) in a DUI case, but prior to a person going before the Judge for sentencing. The purpose of this whole process, most often called a PSI for “pre-sentence investigation,” is to gather background and alcohol/substance use information about the DUI driver in order to make an appropriate sentencing recommendation to the Judge, who, in the real world, pretty much looks at the “recommendation” as more like the blueprint for what he or she is going to order by way of education, counseling, treatment punishment and supervision. This all takes place in an environment where over-diagnosis is the norm (this, by the way, has been empirically validated), and where it is fair to say that the whole court system has an “alcohol bias.” Given that the original and main role of probation is/was to more or less monitor people on while they’re probation, this whole trend of having probation officers do substance abuse evaluations, arrive at what are essentially clinical diagnoses, and then make treatment recommendations based upon them – in addition to handling the whole punishment/supervision side of things – raises some serious concerns.
Serious enough, indeed, for it to be one of the more important considerations for me when, a number of years ago, to go back and complete a post-graduate program of addiction studies. And serious enough to still be a concern in each and every case I handle, but at least one I have the formal training to discuss and understand in clinical terms so that I can protect my clients from excessive, ineffective or unnecessary counseling and/or treatment recommendations. Whatever else they do, probation officers do not, as part of their work counsel or treat alcohol or drug problems, ever. Yet it is undeniable that these same probation officers play the most important role in deciding who has a problem or not, and whether a person needs a quick educational class or classes, some counseling, a lot of counseling, or outright treatment) with or without AA any number of times per week). This is why it is so important for me, as the DUI lawyer, to influence the PSI before it’s completed, rather than showing up in court, essentially a day late and a dollar short, and trying to get the Judge to ignore what would otherwise seem to him or her to be a well-supported recommendations made therein.
There is a lot to this, and, in part 2, we will dig in much deeper than the overview we’ve put together so far. Still, we’ll stop here for now and when we come back, we’ll pick up by looking at the components of the PSI in more detail, focusing on the the background information that must be provided, the assessment the current circumstances of your life, the interview with the probation officer, the alcohol screening test, the pervasive and ever-influential concept of over-diagnosis, and the real impact that can be made on the PSI before it is completed and submitted, and what can be done in court, when you’re standing in front of the Judge who has just read it, to be sentenced.