In my role as a Michigan DUI lawyer who concentrates his drinking and driving practice in the Metro-Detroit area (meaning Macomb, Oakland and Wayne Counties), I have published hundreds of informational articles about every facet of the DUI process on this blog, as well as my site. This article will be about alcohol and drug testing in DUI cases, and will also mark a slight shift from my usual approach, because beyond just confining myself to a mostly objective examination of the topic at hand, I also want to make a few “editorial” points, as well. Testing, both as a condition of bond and as a requirement of probation, has essentially become universal in local DUI cases. The inspiration for what the reader may glean as my attitude in this article came, quite literally, as I was looking at my computer screen thinking about what to write, and received a phone call from Ann, my senior assistant, describing the difficulty a client of mine was having as he struggled to comply with his testing requirement. This client lives in Florida, and has a DUI charge pending in an Oakland County district court. As I write this article, hurricane Irma is pummeling Florida, and many people from the state are evacuating, and pretty much everyone else is bracing for disaster. Everyone there is worried about just surviving, rather than urine or breath testing.
As Ann explained how my client wanted to do his best to comply with the court’s order, despite having to deal with an actual hurricane, I couldn’t help but remark what a HUGE pain in the a$$ all this testing stuff has become. In fact, the whole “testing” thing eats up a ton of court time, and has grown into a monster industry (in every sense of the word) in its own right. For a lawyer like me, who handles DUI issues every single day, not a week, or even part of a week, goes by without some problem arising due to alcohol and/or drug testing. What makes this such a pain is that much of the time, it’s not about my clients getting caught drinking. Instead, I see endless non-drinking issues, like missed tests, a miscommunications about testing, or false-positive results. And for those who do imbibe and get caught, it’s often like the angel of bad luck has made sure that the ONE TIME they did have anything to drink, they had to test right after.
For all the problems testing creates, and there sure are a lot of them, the simple fact is that, as a tool to ensure compliance with an order to not drink or use drugs, it is effective. Most people will resist any offers to drink or party when they know they’re going to be tested. Moreover, the majority of people who winding up testing positive do so because they did, in fact, drink or use. In that sense, testing works. However, from where I sit, dealing with the fallout of honest errors (like a missed test) and false positives, I have to wonder if the overall cost time, effort, and money just hasn’t grown too high. One cannot sit through a morning or afternoon’s session in any courtroom without at least several testing issues being heard. Of course, most of them involve someone testing positive because they ARE positive for alcohol or other substances, but plenty of others involve things like missed tests and other situations where the burden of testing just became one thing too many in a person’s life. Most people don’t miss a test because they decided to skip it, stay home, and watch cartoons, instead. Most often, there is either a miscommunication about the need to test, or, the person simply got caught up in life, with things like kids and work.
In many of my articles, I try and turn things around for the reader so that he or she can understand the Judge’s position. Here, I want to do the opposite. As much as any Judge may be approachable and reasonable, there are things that no person will ever say, and that lawyers feel uncomfortable bringing up, even in private. No one wants to piss off the Judge. That’s a losing strategy. Yet Judges do need to understand how things work from the defendant’s perspective. Sure, if you’re a Judge, you see that a certain, rather consistent percentage of people do NOT comply with a “no-drinking” (or no drugs) order and wind up testing positive. Yet it cannot be denied that an awful lot of people who do refrain from drinking (or using drugs) have GREAT difficulty testing multiple times per week, especially if they’re trying to hold down a job, as well. It’s really easy to tell someone they can’t drink and they will test to make sure they don’t. From the bench, it seems clean and simple; don’t drink, and show up and provide a breath or urine sample when your color comes up.
Until you’re the one calling every day to see if your color is up, and then scrambling to get in line at a testing center. I’ve never personally been to a testing center, but I’ve heard enough about them and I can figure out that they’re not staffed by moonlighting cardiologists. Kudos to everyone who works for a living, but who do you think takes a job as a piss handler? And who, for the most part, do you think is providing the samples? Most of my clients feel decidedly out of place in these lines, and that’s a good thing. Still, given how life has a way of getting in the way of itself, having to call every morning, and then making time to get to the testing facility and either blow, or pee, is a huge pain. And sometimes, you just get a little behind in life, or a little caught up, and something slips your mind. Or you work late. I know Judges have heard all this before, but only in the plaintive voices of those in trouble for missing. No one has ever stood before a Judge and really spoken their mind. And since I’m not about to do that disrespectfully, we’ll call upon our candid imaginary friend, No-Filter Nick, to do it for us. Nick is going to voice what just about every single person required to test has thought inside his or her head:
Judge: As a condition of bond, Nick, I’m going to have you test 3 times a week for alcohol and 2 times a month for drugs.
Nick: What? Are you f-ing serious? First of all, I don’t do drugs, and second, you mean I have to go piss in a cup 3 times a week? Where am I going to find time for that? This is bull$hit! I work hard, pay my taxes and have never been in trouble before, and now I have to do this $hit?
Assume Nick travels a lot for work, so after addressing this with the court, the Judge orders the following:
Judge: Okay, Nick, I will allow you to travel for work, but instead of having you test at some facility, I’m going to order that you test using a Soberlink (this is a portable, handheld cellular breath testing device) 2 times per day. You’re still going to have to make some kind of arrangements through probation to test twice a month for drugs, though.
Nick: Great; I’m sure this f-ing contraption isn’t cheap, and now I’ve got to cart this this thing around everywhere I go. This is crazy; I feel like I’ve been convicted already. How long am I going to have to do this?
I can assure you, though, that in the real world, whatever they may be thinking, both Nick and his lawyer won’t bat an eye, and will politely listen, and then say, “Thank you, Your Honor.” As I said, and understanding all the good intentions that may be involved, it’s still a hell of a lot easier to tell someone to go do all this than it is to actually do it. Although I’m a non-drinker myself, knowing this is part of the deal would be enough to keep me from drinking and driving if I ever did indulge in adult beverage.
Within the last few weeks before this article was written, among other violations, I’ve handled cases for clients who called to check if they had to test and were erroneously informed they did not, and another client whose test result was a false positive. Even though we independently lab tested her as clean, it was never determined why the testing center got it wrong, although we strongly suspect mislabeling by the highly professional staff of “pissologists.” My poor clients not only had to go through the testing itself, but then pay a lawyer (me) to go to court separately for a violation that shouldn’t have been. And even in those cases where a person misses a test by a day because of work or whatever, is the cost of requiring a separate violation hearing and everything else really worth it? Look, in the interests of full disclosure, I make money handling these cases, but I also have a conscience, and while I need to get paid for my time, I don’t want to do it by cashing in on someone’s misfortune.
The flip side here, though, is that many violations arise because a person did drink, or use drugs. In these cases, my job, as the lawyer, is to help the Judge understand that, often enough, the person was neither disrespecting the court’s order nor otherwise falling victims to cravings he or she couldn’t resist. Sometimes, a person who knows that he or she doesn’t have a drinking problem and is otherwise law abiding feels they’ve been punished enough and shouldn’t be prohibited from something that is otherwise innocent, like having a glass of wine with dinner. This doesn’t excuse drinking in violation of the court’s order, but it does tend to explain, if not even normalize the underlying behavior. From the Judge’s perspective, an indisputably positive test looks pretty much like either the middle finger, or the actions of someone who can’t resist the urge to drink. Neither of those are very good, so we have to change that.
The solution here is to just comply with testing and don’t drink or use drugs. Yet the simple message beyond that is that testing is burdensome, and even more so for anyone who has to face a violation even though he or she has not used alcohol or drugs. As much as I’d hope that in time, the whole testing requirement is either relaxed or made more convenient, the forecast seems clear that it will continue to be ramped up in every way. Nowadays, courts that didn’t previously test, or that didn’t do it very much, are doing it more than ever. There are really no courts left that don’t test. Testing has reached it’s tentacles into almost every facet of DUI cases, and if the pendulum ever does swing the other way, it’s likely to be after self-driving cars have taken over.
Until then, I’ll be here to make things better for those who do find themselves in a jam. If you’ve been violated, whether while on bond or on probation, I can help. As much as I’ve expressed my frustration here, because I confine my criminal and DUI practice to the Greater-Detroit area, I know how to present things in the various local, Tri-County area courts. Beyond this piece, I’ve written plenty about conditions of bond, probation violations and testing in many of the other articles on this blog (and in some of the relevant sections of my website), so read what you can. If you’re looking to hire a lawyer, check around, do your homework, and then pick up the phone. You can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m. at 248-986-9700 or 586-465-1980. All consultations are confidential and done over the phone, right when you call.