Avoiding the big risk in a Detroit-area DUI case – Part 1

The real risk in a 1st Offense Drunk Driving case is that a person has (or the Court, at least, concludes a person has) a drinking problem that is finally interfering with normal life functions, like driving. From the point of view of a Judge, and therefore extremely relevant to what I do every day as a Michigan DUI Lawyer, every single 1st Offense DUI is either a one-shot, out-of-character incident for someone, or it’s just the first of more to come. When you think about it for a moment, that concern is relevant to every DUI case that has ever been brought. To put it another way, every single person facing a 2nd or 3rd DUI charge had to have had a 1st Offense, as well.

It goes without saying that absolutely everyone ever Arrested for a 1st DUI says, “it won’t happen again.” Moreover, absolutely everyone who says that means it at the time they say it. Do you really think there’s anyone who ever really intended to get Arrested for another DUI? Of course not! Therefore, the measurement of the likelihood that a person will be a repeat Offender, or not, has nothing to do with how much they insist, “It won’t happen again.”

gamblingwiththedevil 1.2.gifThe most effective (and perhaps only) way to measure the risk that a person will pick up another DUI is to assess their relationship to alcohol. Part of the whole problem with DUI cases is that, by far, most people who face this charge are not “Criminals.” My Practice is a good example. I am a higher-end DUI Lawyer; I don’t compete with the “lowball” cut-rate Lawyers, and I offer a degree of service they don’t even know exists. Accordingly, my Clients are far more “high end” people. I represent Professionals in all fields, and absolutely none of my DUI Clients is a risk to commit something like an armed robbery, an assault, or to steal a car. My Clients may technically be facing a Criminal charge, but they are not Criminals.

We all know, or should know, at least, that one’s status as being a law-abiding, taxpaying citizen is not exempt from the reaches of a drinking problem, and the incidence of problematic drinking amongst those people ever Arrested for Drunk Driving is statistically MUCH higher than it is for the population at large. This explains why, depending on the Court system in which your case is pending, you might be required to “test” for alcohol to enforce a “no drinking” condition of your Bond, or release from Jail. Unlike crimes driven by drug addiction, poverty of other types of desperation, Drunk Driving cuts evenly across the most highly-educated and high-income brackets. In fact, you can’t be that destitute in the first place to have access to a car….

This means that a sitting Judge has to look past the SES (socio-economic status) of anyone facing a DUI, and really doesn’t have to waste much time determining if a person is a “Criminal” or not. Whether the person before them earns their living digging ditches or doing heart-bypass surgery, the first concern of the Court is whether this 1st DUI represents a truly isolated incident, or is just the proverbial “tip of the iceberg.” And given society’s growing (if not media-fed) preoccupation with Drunk Driving, and the fact that being a Judge who is known as “tough” on Drunk Driving presents NO problem at election time (who’d vote for the candidate that’s “easy,” or “lenient,” or “not as tough as the other guy” on DUI Drivers?), we’ve produced a recipe that sets anyone facing a DUI charge up for a trip through the meat grinder.

In a perfect world, the determination that a person either does or does not present a risk for a drinking problem would be made by someone with actual credentials to do that, like a bona-fide Substance Abuse Counselor. In the real world, a Probation Officer from the Court makes that determination. The Probation Officer is tasked with administering (and scoring) a legally required written test, called an alcohol assessment. Leaving this to a Probation Officer is not a good idea, and I’ll address it in full detail sometime soon in another article. For now, I can at least identify a few valid concerns about having a Probation Officer do a Substance Abuse Counselor’s work.

In that regard, I bring far more authority to this subject than the any other DUI Lawyer. I am involved in the formal University, post-graduate level study of alcohol and addiction Counseling. While there are some technical wizards in the DUI field who could probably take apart and rebuild the breathalyzer machine on a Courtroom table, I decided long time ago that understanding the etiology, diagnosis and treatment of an alcohol problem was far more important to producing good results in DUI cases than merely understanding how the breath test machine works. Accordingly, I am involved in the formal University, post-graduate level study of alcohol and addiction Counseling. My rather specialized knowledge is centrally relevant in every single DUI case that goes forward, whereas expertise in the workings of the Breathalyzer machine is of precisely ZERO value in any case not dismissed or won at Trial.

This is important; unless some Lawyer’s knowledge of the Datamaster Breathalyzer machine gets the charges thrown out, or results in a “not guilty” verdict at Trial, that kind of “expertise” won’t be of ANY help in minimizing what actually happens to you in a DUI case that doesn’t just “go away.” And good luck with that kind of plan: In 2011 there were 54,291 Drunk (and “Drug”) Driving charges brought in Michigan. A whopping 95 (you read that right – 95, or .174%) of them turned out as “not guilty” verdicts. Put another way, less than two-tenths of one percent of those 54,291 people were acquitted at Trial. Not much of a plan there, unless you’re the kind of person who thinks you’ll retire on your Lottery winnings…

Back in the real world of what the Judge is actually going to do to YOU, the single biggest determinant is how well or poorly you do on the alcohol assessment administered by the Probation Officer. Once that test is scored, the Probation Officer must incorporate it into a written Recommendation that he or she is legally required to submit to the Judge prior to your Sentencing. This Recommendation tells the Judge what to do to you.

Michigan Law requires that, before being Sentenced by the Judge, a person undergoes this mandatory alcohol assessment test. In the Metro-Detroit Courts where I handle DUI cases, every single Court, as I noted above, assigns this task to a Probation Officer, who, beyond just administering the test, also conducts an in-person interview and gathers background information to be considered by him or her in making their Sentencing Recommendation.

Another “real world” fact is that virtually every Judge, in every Court, follows the Probation Officer’s Recommendation pretty close to the letter. In other words, whatever is written in the Recommendation is essentially a blueprint for what’s going to happen in Court. No Judge out there is going to make a wholesale departure and wind up Ordering a Sentence that’s radically different from what the Probation Officer has recommended. When you walk into Court on the day of Sentencing, you are required to read and review the Probation Report (often called a “PSI,” meaning “Pre-Sentence Investigation”) prior to going before the Judge. As you read it, you can count on the fact that the Judge will be Ordering pretty much whatever it suggests that he or she Orders.

My knowledge about standardized alcohol testing is very helpful here. It is far better that you are THOROUGHLY prepared to take that alcohol assessment test in the first place, rather than argue about your test results later on, after the Recommendation has been submitted to the Judge. Beyond that, one of the biggest risks, and something I defend against almost daily, is that because the Probation Officer is NOT a Substance Abuse Counselor, he or she cannot really make any kind of “diagnosis” about whether or not you have an alcohol problem. Not that this complete lack of training ever stops them from doing just that…

At any rate, the Probation Officer’s lack of formal training and credentials in assessing and determining whether a person has an alcohol problem, or is at risk to develop one, means that instead of being able to use the whole spectrum of clinical criteria to make such an inquiry, they are limited to using a single, written test, and have to use an “over the counter” type of test, at that, because they lack the specific training needed to administer and interpret any test of better, meaning more accurate, clinical value. This is actually a rather scary situation, because it amounts to having an untrained person making a determination using a single, inferior diagnostic tool, whereas the properly trained person uses multiple tools, and better ones, at that.

All is not lost, though. I can use all of this to my Client’s advantage. First, the written test used by any Probation Officer is limited in diagnostic scope, and because I have a rather in-depth knowledge about the 5 specific “markers” or “traits” that any such test will assess, I can prepare the Client to do exceedingly well upon it. It is not that I set out to show the Client how to “fool” the test, but I do believe anyone undergoing an evaluation of any sort has an absolute right to know everything about it beforehand. The fact that my Clients then know how to avoid piling up the points on one of these tests and doing poorly is just an added, albeit important, benefit.

This means that I send a well-prepared Client to take the alcohol assessment test, and make sure the Client understands the nuances of dealing with a Probation Officer, which is really a science unto itself. There is a whole psychology involved in being a Probation Officer; this too, will be the subject of some future article. The part that’s relevant here is that as the Probation Officer, just like the Judge (and really just like the Defense Lawyer) deals with DUI cases day-in and day-out, he or she will begin to see “patterns,” and think that he or she has a handle on the whole “alcohol problem” thing. After all, the Probation Officer sees 1st Offenders who have truly made a single mistake, as well as people who have more DUI’s than you can count. They learn to make predictions. They come to think they understand alcoholism, but what they (and most Judges and Defense Lawyers) really come to know amounts to a very narrow perspective on a very wide-ranging phenomenon.

As a result, Probation Officer, Judges and Defense Lawyers don’t really understand “alcoholism” beyond those cases involving alcohol that present legal implications. They understand that little slice of the pie they see every day, but they don’t understand those things centrally important to “knowing” about a drinking problem, like how it can or does develop, and how biological, environmental and psychological factors can influence that. They don’t study how an alcohol problem grows and exacerbates, or the many ways used to properly diagnose it. The Court system, generally (and rather universally) academically understood to be 10 to 20 years behind modern diagnostic and treatment protocols, often thinks of AA as the “only” way to get sober, despite nearly 2 decades of mounting evidence to the contrary. The Probation Officer, in short, doesn’t fully understand the subject with which he or she is in charge.

But I do.

Think of it this way: Just because you drive a car everyday, and the engine starts when you turn the key doesn’t mean you’re an engineer who understands the inner workings of internal combustion engines. I watch TV everyday, but I couldn’t put one together, or ever repair one. Years ago, a teacher once told me something like this: Every parent, she said, thinks they know all about education because they’ve been through school. Having been a student, though, doesn’t make you a teacher. It takes specific education and training to be an engineer who designs cars, or designs TV sets, or educates children at various stages of their development. We may think that because these things are part of our everyday lives, we “know” them, but not in the way that makes us experts at them.

In Part 2 of this article, we’ll continue our examination of the principle risk someone faces in a 1st Offense DUI case; being labeled as having, or being at-risk to develop an alcohol problem.

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