Michigan Criminal Defense Lawyer Blog
Let’s begin part 2 of this article by taking account of what was covered in part 1: We have every DUI driver required, by law, to undergo an alcohol assessment. You can call it a screening or a substance abuse evaluation or whatever, but it’s all the same thing. This “screening” is done against a backdrop where it is understood that DUI defendants, as a group, present with a higher incidence of alcohol problems than the population at large. Instead of having a substance abuse counselor administer the assessment in a DUI case, the court has it done by a probation officer. Because probation officers are not practicing clinicians, they cannot use the higher-level screening instruments, or otherwise ask the probative kinds of questions that one would expect from a real substance abuse counselor. Instead, they rely upon less clinically sound screening instruments that use a “scoring key” to determine what level of alcohol problem a person supposedly has, or may develop. Using that score and whatever other information he or she feels is important, the probation officer is responsible for submitting a written recommendation that tells the Judge the sentence that you should get, and you can count on your actual sentence closely following that recommendation. If that doesn’t sound ideal, then you’re getting the point. But we’re not done yet; it gets worse.
If I seem to have been somewhat critical of probation officers in the preceding installment, I’m going to cut them some slack here. Imagine that you suddenly became a probation officer. Every single day, every person with whom you speak has been convicted of a crime. A huge part of your caseload is comprised of drunk drivers. Forgetting even the dismal statistics I cited at the outset of this article, you have to remember that probation officers don’t deal with people merely accused of crimes, they deal exclusively with people who have been convicted of crimes. This kind of experience shapes a person. Add to this that absolutely everyone convicted of a DUI insists that he or she does NOT have a drinking problem, and that a sizable percentage of people who go through a 1st offense DUI, despite their protests to the contrary, wind up in the system for a 2nd offense DUI (and some of them are back for a 3rd or even subsequent offense). I always point out that if anyone sat in the probation officer’s chair for a year, he or she would see the world differently at the end of that 12 months. This goes double for everyone who breezes in claiming to have no issue with alcohol and giving assurances that this will never happen again.
Perhaps now it’s easier to understand why, in a 1st offense DUI case where a person can go to jail for up to 93 days (180 days in a High BAC case), and considering that the probation officer, who is solely responsible for recommending what happens to you, knows that you won’t be going to jail (most likely, he or she didn’t recommend it, anyway), no one in the system worries a bit if you’re ordered to complete some alcohol education or counseling that you really didn’t need in the first place. For all the “punishment” you could get, you are instead required to go to counseling; big deal. I worry about this, however, because I know how the inconvenience (and, in some cases, expense) of this can affect a person and be a drag in his or her life. If you’re a busy professional, and even if the cost of all this is not an issue, being required to go to an outpatient substance abuse program 3 times per week, and having to do AA another 2 times per week, along with breath and/or urine testing IS a big deal, especially when it’s all to treat or prevent a problem that you don’t have…
Part of the reason that the alcohol bias I mentioned earlier even exists is that when anyone in the court system sees a DUI driver, the person’s case always involves a host of negative things leading up to the arrest and charge. No one gets pulled over for driving too well. Police reports always always have and always will painfully detail swerving and weaving and slurred speech and people being unsteady on their feet and other drunken behavior. In some cases, the police are alerted to a DUI driver by a cell-phone call or because of an accident. The point I’m making is that DUI defendants come to court looking messy even before anything happens. Think about it; the people in the courthouse NEVER deal with people in the system for whom drinking didn’t cause some kind of problem.
This really became clear to me when I began to more fully understand the diagnostic criteria used by clinicians to determine if a person does, in fact, have a drinking problem, as opposed to those factors typically considered by a probation officer in making that same assessment. An evaluation completed by a substance abuse professional will always be different than a “screening” done by a probation officer, and a person who might “test out” as not having any kind of problem or presenting any worrisome risk if evaluated by a good clinician is quite likely to wind up being seen as needing education, if not outright counseling, when screened by a probation officer.
And then there is the business of business. Let me be rather blunt about this: If you (the reader) and I opened up a substance abuse clinic together, and even if we were both top-notch substance abuse counselors, we might starve to death and go bankrupt before we ever built a successful practice. Every practice (including mine and your Dentist’s and your Doctor’s) is a business. If you want to make money in the substance abuse game, the single best thing you can do is get a steady stream of court referrals. Once you get them, the last thing you want to do is send them back with little or no services. The court expects you to do something for/to/with these people, and you’re going to get paid (or not) accordingly. You can hang out a shingle and wait for someone to come in, or you can tap into the never-ending stream of court-mandated clients that pay the bills. This is obvious enough that I shouldn’t have to explain more…
Substance abuse counselors who get court referrals work directly with probation officers. Why would a counselor ever call up a probation officer and say, “Hey, I don’t think Mr. X needs any education or classes.” It’s really easy to simply console one’s self, as you get paid, that even if Mr. X doesn’t really need the help, that’s his “punishment” on the one hand, and, if his drinking ever does get a little too risky down the road, then maybe something he hears now can help him later. This is not to say there is a grand conspiracy (I personally believe far more in incompetence than conspiracies), but that the status quo has evolved to keep MADD happy and quiet, to keep the public happy and quiet, to shield any and everyone from “blame,” and, of course, to keep everyone getting paid. No one in this whole deal (including yours truly) loses out except you. Everyone gets paid, and you’re the one doing the paying.
I try my hardest to reel this back in and keep my clients from winding up in any classes or counseling they don’t need. First, I make sure my clients are thoroughly prepared to answer the questions on the alcohol screening and for their interview with the probation officer. We’ll go over the nuances of alcohol screening and the things you can say, innocently enough, that will land you in enough counseling to get your own PhD. I do this “prep” in a separate appointment with my client that will take us about 2 hours; contrast that with endless weeks of counseling and AA to see how a minimal investment of your time can pay huge dividends. Beyond preparing for the probation officer and the written assessment, my specialized training allows me, when we go back to court, to point out to the Judge the flaw in any purported “diagnosis” reached (scored, really) by the probation officer that relies (as so many do) on non-clinical criteria and that ultimately results in a recommendation that my client undergo treatment he or she may not need. I’m not a clinician, nor do I pretend to be, just as even those probation officers with some substance abuse training should not, either. You can’t be a clinician and be a lawyer or a Judge or a probation officer or anything else; you’re either a clinician, meaning you treat people for their problems, or not. I do, however, use the services of several top-notch clinicians whose expertise and integrity is above reproach. I keep my clients out of unnecessary counseling by combining my clinical training, my legal knowledge and over 25 years of day-in, day-out courtroom experience and using them in proper measure. I know, as a matter of fact, that this has a direct and significant impact on what happens to my clients. As I stated before, knowing how to operate a Breathalyzer machine is all well and fine, and if that gets your case dismissed, then great. But if, instead, as is likely to be the case, you wind up being part of the other 98-plus percent of people whose DUI case does, in fact, go through the court system, you could have every breath test machine expert on retainer and that will do you about as much good in your case as an umbrella will help in a tornado.
I believe in what I do. I have been the guy who has steered people to make the right choice to get help, when they’ve needed it, that has resulted in life-changing commitments to sobriety. When you help someone in such a way, the feeling you get transcends all the money you could ever earn. On the flip side, however, I also celebrate helping people NOT get rolled over by the mindless system (with it’s built in bias) that treats everyone the same and applies the “one-size-fits-all” approach to DUI cases. The rewards here are somewhat different, because people don’t always know how much time or money you’ve saved them. Still, I look at unnecessary treatment and counseling as not only an undue consequence to those who don’t deserve it, but also as a waste of precious resources better used for those who really need it.
If you’re facing a DUI, particularly a 1st offense DUI, and you know that your relationship to alcohol is not troublesome or risky, I can help you avoid as many of the unnecessary consequences, especially those like classes and counseling and AA, as possible. I bring an unrivaled background that produces tangible benefits for my clients. If your case is pending anywhere in Macomb, Oakland or Wayne County then do your homework, compare my writings to those of any other lawyers you’re considering, call around, and, when you’re ready, call my office to get my take on your situation. We’re here to help, Monday through Friday, from 8:30 to 5:00, and can be reached at 586-465-1980.