The other day, my paralegal, Ashlee, told me of a conversation he had with a caller who had gotten into trouble because of a relapse after having been clean and sober for a number of years. She smiled as she recalled telling the caller, “Well, you certainly called the right place with us because we kind of specialize in substance abuse matters.” I nodded in agreement, but as I began to think about it later, realized how accurate Ashlee’s statement really was. Every single day, for almost all of the day, my staff and I deal with issues related to drinking and drugs in criminal, DUI and driver’s license restoration cases. These issues are so central to what I do (more on that in a bit) that a number of years ago, I returned to the University campus (no online classes for me) and completed a post-graduate program of addiction studies. Between handling DUI cases and driver’s license restoration appeals, issues directly related to the development, diagnosis, treatment of and recovery from alcohol and/or drug use disorders are at the core of everything I do. In this 2-part article, I want to look at the critical importance of understanding substance abuse issues in the context of DUI (OWI) and driver’s license restoration cases, and in certain other criminal cases, as well.
In a 1st offense DUI case, for example, I use my clinical training to prevent a person who does not have a drinking problem from getting caught up in the court system’s inherent “alcohol bias” and wind up being treated like he or she does. This means I work to prevent them from getting ordered into unnecessary substance abuse counseling, education and/or treatment. By contrast, when a person with a 2nd offense DUI tries to explain, as many 2nd offenders do, that no matter how bad things look and how much the court system will “think so,” he or she doesn’t have a drinking problem, I have to make clear that, by law, that every 2nd offender is required to complete some kind of counseling. I must also make clear that, clinically speaking, no matter how much the person does or does not drink, just by their record alone, there is obviously some kind of risky relationship to alcohol. I have to help my client see that, at this point, labels don’t really matter anymore. I deal with it all, from 1st time DUI offenders who quite obviously have a serious drinking problem to 2nd offenders who do not, and really are just unlucky, The same holds true for certain criminal charges, and particularly drug and even marijuana possession cases.
The court system is not (and does not have the resources to be) very nuanced or subtle about a person’s relationship to alcohol, operating instead from the position that, if you’re facing a DUI, you probably have some kind of drinking problem. Lawyers typically line up to make their money by agreeing with and never challenging a client who say, “not me.” From a business point of view, the customer is always right, so if a client with multiple prior DUI’s calls in and is looking for a lawyer who will echo that he or she doesn’t have problem, it’s a temptation that’s hard for many to resist. After all, money talks and BS walks, right? On the flip side, however, nobody really wants to hire some lawyer who thinks he or she is Ms. Sobriety or Mr. Rehab, either, and won’t fight to protect them. Where, then, is the balance? I think it’s fair to say that if we are going to be honest here, we need to acknowledge that a lot of the trouble people get into, especially those that result in DUI, criminal or drug possession charges, are the result of poor decisions made after drinking or using. Imagine if you asked a law-abiding, non-drug using person, “Would you mind keeping these Vicodin pills (or this cocaine, or whatever) in your pocket while as we drive around?” They’d look at you like your nuts – but to a drug user, having them in their pocket as they travel around in a car doesn’t seem like such a stupid idea. The point I’m making is that the court system doesn’t have it completely wrong about alcohol and drug problems and how they “ride in” with various cases, but that same system doesn’t always get it right, either. Not every DUI driver has a drinking problem. The lawyer must find the right balance between these seemingly competing positions in order to produce the best outcome possible for the client. Here’s what I mean…
If, as a lawyer, I’m really going to help a person, and even if I know he or she is struggling with something like an obvious drinking problem, it will generally be counter-productive for me to start preaching “you need help” and all that. I am, after all, hired as a lawyer, and my job is to save someone’s a$$ far more than it is for me to save anything else. Yet as much as an unwanted lecture that “you have a problem!” can send a person running for the hills, it is truly a failure, at the human level, to simply pretend nothing is wrong. For me, it would be an ethical and moral collapse, although probably not so much so for the lawyer who doesn’t know better. I believe, however that it IS important to “know better,” and I believe the proper balance is stuck by being honest with the client and giving him or her the information properly consider their situation. Let’s use a hypothetical 2nd offense DUI case to illustrate my point:
Assume I get a call from Debbie the Driver. Debbie is being charged with a 2nd offense DUI. Her 1st offense took place about 5 years ago. This time she was pulled over for speeding, and her BAC came back .11. She knows she’s in trouble, but she insists that she didn’t feel that bad when she was driving and that she really does not drink that much or that often, anyway. She hates the idea that she’s going to lose her license and be treated, as she describes it, “like an alcoholic.” It would be really easy for a lawyer to give her the hard sell, just agree with her and say, “we won’t let that happen.” Beyond making her feel all warm and fuzzy and pretty good about handing her money over, that approach does NOTHING to actually help Debbie. Statistically speaking, it’s very likely that Debbie has some kind of problematic relationship to alcohol, but it’s also far more likely than not that she isn’t looking to be “saved” from any of that right now by a lawyer; her first concern is staying out of jail. Even if she knows that her drinking is the common denominator to her troubles (or at least legal troubles), she probably doesn’t want to be lectured about it, and certainly not by her attorney. She wants her lawyer, first and foremost, to save her a$$.
If Debbie hired me, I cannot, in good conscience (and that damn conscience has cost me a lot of money over the course of my life), just pretend that there’s nothing to her drinking and that’s all just bad luck. First off, if you march into court with that attitude, you’re in for a beat-down by the Judge, anyway. More than that, though, I think that I’m duty-bound, not only as a human being, but also as someone with that post-graduate clinical addictions training, to explain to Debbie that while I’m not suggesting any label (alcoholic, alcohol abuser, binge drinker, problem drinker, etc.) for her drinking, we must deal with the fact that it has become risky, as a matter of record (this is, after all, her 2nd DUI). To get one DUI can be bad luck, but by the time a person gets a second, even if it’s just bad luck all over again, just being that unlucky means they’re a risk. I usually use this analogy: Say we go to a restaurant and eat, and I am sick as hell the next day. Most people probably wouldn’t go back to that restaurant, even if the reason for their getting sick was a mere coincidence. Now, if I went to it again and got sick a second time, even if I had gone back several times in-between without incident, everyone would agree that I should just stay away thereafter. Only a nutcase would keep going back. It doesn’t matter why I got sick, because twice out of the same place means something is wrong, even if it is just repeat bad luck or my particular digestive preferences. If you had a friend who went ice skating and fell and broke her wrist a few years ago, and recently fell again while ice skating and broke her ankle, you wouldn’t think very long before saying “you should forget ice skating. It’s not for you.” If your friend argued to the contrary, you’d undoubtedly conclude that her thinking is a bit “off.”
Why is it any different for drinking? To the extent a person facing a 2nd offense DUI is all worried about not being able to drink again, or drink anytime soon, it doesn’t take a rocket scientist to figure out that his or priorities are out of whack. It would seem that drinking has become a bit of a preoccupation, or at least consumes too much mental energy and time. It becomes my job to explain this to the client – make him or her really grasp this – not so much as the lawyer, but as human being, or as the “counselor” part of “attorney and counselor at law.”
I must also, as the lawyer, explain the legal and practical realities to my client. If you are facing a 2nd DUI and you try and argue with the Judge that you should be able to have a glass of wine with dinner while you’re on probation, you’re digging a huge hole for yourself. The lawyer must make the client understand how the system works and how it “sees” things in order to prevent the client from running head-first into more trouble. Are you paying for help in the courtroom, or just to be agreed with?
But that’s not the whole of it. The system is far from perfect. In fact, it’s rather flawed. I have, for example, heard some within the court system voice their belief that relapse is not part of recovery, even though this is a generally accepted clinical reality. In terms of the types of counseling, education or rehab to which the courts send people, it’s hit or miss, at best, and mostly miss, at that. Within the system, AA is still the gold standard. AA is a great program, but it’s not for everyone, and, in fact, we’re learning that, over the long term, it’s not for most people. Miss again. It therefore becomes my job to help the Judge consider the whole range of treatment options, with eye toward selecting the one most appropriate for any given client. Consider this hypothetical: Assume a young woman about 26 years of age gets a 2nd offense DUI. She winds up in front of a Judge who has a strong an attachment to AA and therefore requires her to go to 2 meetings per week. Because of her transportation situation (no license) she is stuck going to the 2 meetings nearest her home that are mostly attended by older men. Nice guys and all, but when she walks into the room these portly middle-aged guys with flannel shirts and gray beards all turn around, their eyes wide, and greet her (with no bad intent), kind of like “Hiya sweetie, why don’t you have a seat right here?” Of course, she cringes, and the “creep” factor is so profound that any potential therapeutic benefit she may have every gotten from AA just went out the window. Even if her feelings are a bit exaggerated, feelings are facts and whatever the Judge was hoping she’d get out of the program is now a lost cause.
Do we force her to keep going for the next 51 weeks? And what good is it if her lawyer, understanding how creeped out she was, but with no clinical understanding of substance abuse treatment, marches her in front of the Judge and asks that she be allowed to not go to AA? The chance of that happening is slim to none; without more, the Judge can rightfully think, “Well, you got yourself into this mess, and instead of locking you up I’m making you go to meetings, instead. Seems to me that beats the hell out of jail, so I’m not going to lose any sleep over you not liking it. That’s just too bad.” However, if the lawyer can articulate a suitable alternative, help the Judge see the bigger picture at play, and do it in a way where the Judge really “gets it,” then he or she should have no problem releasing her from AA and allowing her to do something else, instead.
We’ll stop here for now. In part 2, we’ll pick up by looking at how an intimate knowledge of addiction, and, more importantly, the broad spectrum of recovery methods, is the cornerstone of success in a Michigan driver’s license restoration case. So much so, in fact, that I am able to guarantee to win every license appeal case I take. We’ll also see how this can positively affect the outcome of other criminal cases, as well, including drug possession charges.