Michigan DUI – Why the Pre-Sentence Investigation and Written Alcohol Screening are SO Important – Part 5 (The Sentencing Recommendation)

In this ongoing article about the mandatory alcohol assessment (detailed in part 4) and pre-sentence investigation (PSI) in a Michigan DUI case, we have covered, so far, 2 of what I call “the big 3” components of the PSI process.  Ultimately, the purpose of that process is to generate a written report and recommendation to the Judge about whether a person has (or not), or is otherwise at risk to develop a drinking problem, and what level of education, counseling or treatment should be ordered to prevent another drunk driving offense.  As we’ve seen, the first task in “the big 3” is to gather background information about you (where you’ve come from), while the second is to look at what’s currently going on in your life, both in terms of life itself and your relationship to alcohol (where you are).  The third part of all this, which is actually the end result and goal of the whole alcohol assessment and PSI process itself, and the subject of this 5th and final installment, is to recommend to the Judge what he or she should do to you by way of punishment, supervision and treatment (where you’re going).  It is over this recommendation for counseling, education and/or treatment that we can, if we do this right, have the most control.

recommendations 1.2This is important.  All along, I’ve been repeating how the PSI’s recommendation is really like a “blueprint” for what the Judge will do, and to be perfectly clear, it is.  In the real world, a Judge does not have the time to assess you to determine if you really have, or otherwise are at risk to develop a drinking problem, much less to evaluate your past (including researching any past criminal record) and current life situation.  When you go to the doctor, he or she doesn’t personally take your blood and then run a panel of tests on it; instead, when he or she need information, you get sent for “testing.”  Ultimately, those results are used by your doctor to determine the appropriate course of treatment.  It’s pretty much the same in the court system, especially when it comes to DUI cases.  Ultimately, it is the Judge who uses all the PSI information in deciding what to order in your OWI case, but even saying it like that overlooks the critical importance of the PSI’s recommendation.  For the most part, Judges rely heavily upon the probation department’s recommendation.  After all, it was the probation department that assembled the background information about you, administered the alcohol assessment and “scored” it, and then finally met with you.  At least in theory, probation has come to know you somewhat, and certainly a lot more than the Judge ever can for the few minutes you stand before him or her.  If you’ve ever run any type diagnostic or repair program on your computer, then you know how this goes:  You get a list of “recommended” actions to take, and unless you really have the technical knowledge to know something different (please, computer geeks, just pretend you’re like the rest of us here in order for this analogy to work), you just go with the recommended actions precisely so you DO NOT have to go in and do every single thing yourself.

This is where I see most lawyers miss the best opportunity to really influence the outcome of a DUI case.  Once the PSI recommendation has been written, so too, at least for the most part, has the script for what will happen to you.  By the time everyone shows up in court for sentencing, it is really far too late for the lawyer or the client to make any real difference in terms of what the Judge will do.  By law, the DUI driver and his or her lawyer must read the PSI report and its recommendation before the Judge calls the case.  The Judge will specifically ask if the defendant and his or her lawyer have read the report, and if there are any corrections that need to be made to it.  The Judge will then ask what the lawyer and the person have to say about the PSI report and recommendation.  This is your one and only chance to tell the Judge what you think about it.  We will look at this more closely in the coming paragraphs, but in the all-important real world, this is far more about giving a person a chance to say his or her piece, or to vent, than it is to convince the Judge to deviate, in any significant way, from the recommendation itself.  Wholesale differences between what is recommended and what the Judge actually orders don’t occur very often.  Instead, a Judge can, once in a while, be persuaded to make a small change here or there (like reducing the number of hours of recommended community service from something like 60 hours down to 30, in those jurisdictions that order it).  This is why it is so absolutely imperative that you be thoroughly prepared for the alcohol assessment and the PSI so that, instead of winding up having to make an essentially futile argument against its recommendations at the time of your sentencing, you positively impact the recommendations that are made so that they are more favorable to you.  In other words, since the Judge is already predisposed to follow the recommendation, it is far better to have some real influence in making one that is more lenient, and then showing up in court and asking the Judge go along with it, given that he or she is pretty much going to do that, anyway.  By contrast, if a person goes in and “bombs” the alcohol assessment and/or the PSI, or just otherwise doesn’t do as well as he or she could have, it is a waste of time and breath to show up at sentencing and try and convince the Judge to disregard the recommendation in large part.  That’s simply not going to happen…

There’s an old saying that someone doing any kind of woodwork should “measure twice and cut once.”  The admonition, of course, is to spend the time in the preparation phase to avoid having to fix up what wasn’t done correctly.  The preparation for a PSI, particularly in a drinking and driving case, requires much the same effort.  The difference, however, is that you can’t really “fix” or replace a heavy handed PSI like you can if you cut a piece of wood too short the first time.  In other words, if you go through the pre-sentence investigation process and the probation officer suspects that you are at risk to become a problem drinker, or otherwise develop a troubled relationship to alcohol, and, as a result, recommends counseling, or even treatment, there is no “do over.”  There is no way to fix this; this is why it is totally ineffective for even the most charismatic and well-spoken lawyer to stand before the Judge and complain that his or her client DOESN’T have a problem with alcohol, or otherwise DOESN’T need any kind of education or counseling.  Skipping all the stuff about the probation officer’s qualifications (or lack thereof) to make diagnostic findings and treatment recommendations, in the eyes of a Judge, it comes down to this, especially in a 1st offense DUI case:

I could put you in jail for this.  I don’t need any reason other than I want to, and you’re gone – but I’m not going to do that.  Instead of sending you to jail, I’m going order that you attend and complete some counseling  Your lawyer says you don’t need any of that.  The probation department, who met with you, administered the alcohol screening test and then looked at your answers, and who gathered background information about you, and assessed the other relevant things going on in your life thinks you do need some form of counseling.  Maybe your lawyer is right, and maybe you don’t need any of this.  However, even if he or she is right, and I send you to counseling anyway, so what?  Consider that your punishment for driving drunk!  Instead of jail, you go to some classes or counseling you don’t need; big whoop.  And, if there’s any chance that something you hear while in counseling could help you now, or even years down the road, then I’ve done a good thing!  I’m not going to lose ANY sleep over this.  If, however, your lawyer isn’t exactly right, and probation isn’t exactly wrong, then counseling is still better than jail, isn’t it?  Or would you rather go to jail?

Now, when it comes to effective persuasion in the courtroom, I think I’m about as good as it gets.  In fact, and even if this sound terribly egotistical, there are very few lawyers I’d want to speak for me instead of doing it for myself.  In other words, I don’t think you’ll find better than me no matter how much you look.  If you will indulge me and accept that as true, even for the moment, my point is that almost all of that ability and skill is neutralized in the face of the PSI recommendation.  The goal here is to get a good recommendation in the first place, rather than trying to fix one that isn’t as good as it could have been.  This is why the PSI and its sentencing recommendation are the most important part of a DUI.

In light of what we just went over, do you really believe a Judge would ever think this way?

My probation department reports that you may at risk to develop a drinking problem.  You are here for a DUI, and we know that, statistically speaking, DUI drivers are much more likely to have or to have the potential to develop a drinking problem that the population at large.  According to your screening results, you identify as a possible problem drinker.  As a result, they have recommended that you complete some counseling.  Your lawyer and you tell me you don’t have any kind of problem with alcohol, and don’t need any education or counseling.  Well, heck, I’m good with that.  I mean, if you’re telling me you don’t have a problem, then I guess you don’t.  I don’t really believe all that testing stuff anyway, and the only people I ever put in counseling are those who agree they need it.  You have said you don’t drink that much and that it’s normally not a problem for you when you do, so we’ll just disregard the probation department’s recommendation and skip any kind of education or counseling altogether.

 Yeah, when pigs fly…

Merely disagreeing is pretty much all you’ve got to go with if you aren’t thoroughly prepared to do well at your PSI.  You can jump up and down and disagree with the recommendation all you want, but, as simple logic makes clear, that won’t, by itself, really get you anywhere.  Of course, in some cases it makes sense to go and complete an independent substance abuse evaluation before your sentencing (and, in certain cases, before your PSI), but that involves more than just hiring some half-baked counselor who, for a few dollars, will say you don’t have any kind of problem.  Instead, this kind of counter-point work must be done by a highly qualified professional (like I use) whose integrity is beyond doubt.  The last thing you want to do is get into some kind of battle of competing alcohol assessments.

Even in repeat offense cases (think 3rd offense felony DUI) where avoiding jail entirely may not be possible, minimizing it to the absolute bare minimum certainly is.  In these multiple prior offense cases, you have to understand the kind of “It won’t happen again – I promise” fatigue that probation officers develop after years of doing PSI reports, hearing, “it won’t happen again,” only to see it happen again.  Every 2nd offense driver probably said that to his or her first probation officer, and certainly every 3rd of subsequent offender has said it before.  You’re going to need a lot more than a previously broken promise to make any positive progress with the probation officer conducting your PSI, and the very last thing you need in that regard is some lawyer who merely wishes you good luck on the PSI, or tells you that you’ll have your chance to address the Judge about its recommendation at sentencing.  The PSI is everything.  Before you ever meet with a probation officer, you need to have a separate meeting with your lawyer to go over every single facet of the PSI process so that you are completely prepared.  In fact, you should hope to be over-prepared.  Nothing less will do.  I make it a point to have that separate meeting with each and every one of my DUI clients, and I count on that as a means to drive a better outcome in every case I handle.

After more than a quarter-century of lawyering, I’ve heard just about everything there is about every local, Detroit-area Judge.  I have heard, more times than I can count, about this or that Judge who follows the PSI recommendation “to the letter.”  I’ve heard various Judges called a “rubber stamp” or spoken of as if he or she is a robot who just reads the recommendation and then follows it blindly.  I’ve heard lawyers express their frustrations over those Judges who send defendants to probation for a “screening” and who, without fail, follow everything probation recommends, so much so that the lawyers have asked why anyone has to bother returning to court for sentencing anyway, since everything that’s going to happen will be decided by probation.  Yet for all of that, you don’t hear of Judges who deviate in any wholesale way from the probation recommendation.  Sure, there are some Judges who get high marks amongst lawyers for doing their own thinking when it comes to sentencing, but compliments are always drowned out by complaints.  And it’s interesting to note that some of those Judges praised for their independent thought will also, in some cases, sentence tougher than the PSI recommendation, as well.  The ideal is that a Judge should use the recommendation for exactly what it is – a recommendation; a tool; a guide.  If a Judge, in the act of judging, takes the time to determine that you need X, Y or Z counseling, that’s great.  But if, after actually thinking about it, the Judge decides you do need that counseling, or even something more, and then explains why, and even if you disagree, there is a certain level of satisfaction that comes from knowing you’ve been heard, and your position considered.  Unfortunately, in the real world, this is not the norm, and the PSI recommendation is usually followed rather closely.

I cannot emphasize enough, then, the importance of influencing the recommendation itself.  I trust myself to do as good a job as any lawyer ever could to persuade a Judge to deviate from a PSI recommendation in some sensible way or other.  When it comes to counseling and treatment recommendations, I have more formal education in the addictions field than any lawyer I know, and I can call upon that to explain to a Judge where a recommendation should be implemented differently, or not at all.  But there is a pretty narrow margin wherein any Judge will move regarding the recommendation in his or her hands.  That makes getting a good recommendation in the first place the most important goal.

We’ve now come to the end of our examination of the pre-sentence investigation (PSI) and written alcohol assessment, and how these things culminate in the PSI recommendation.  As we’ve seen, the recommendation is essentially the blueprint for what the Judge is going to order in your DUI case.  I’ve made clear that even the most persuasive lawyer will not be able to move the Judge very far in any direction other than what the probation department recommends, given that the recommendation itself is based upon background about where you’ve come from, where you are in life now, and your “score” on the written alcohol assessment.  If, after these 5 installments, the reader leaves with nothing more than that being thoroughly prepared for the whole PSI and alcohol assessment is critically important in order to make sure you get a better, more favorable and lenient recommendation up front, then I’ve done my job well enough and made my main point.

When it comes to choosing a DUI lawyer, take your time.  Read articles and analysis like this.  Pick up the phone and call around and ask questions.  If your case is anywhere in Detroit area, meaning any court in Macomb, Oakland or Wayne County, call my office, as well.  We’re open Monday through Friday, from 8:30 a.m. until 5:00 p.m., and can be reached at 586-465-1980.

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