Articles Posted in DUI

As a Michigan criminal and DUI lawyer, I am contacted all the time by people facing something like a drunk driving, suspended license or possession of marijuana charge and are worried about the upcoming date on their citation.  In this very short article, I merely want to explain what this means and help the reader understand that, for the most part, and despite what it may seem like, the date on your ticket is most often NOT any kind of fixed “court date.”  This is very relevant to those who contact me after something like a DUI arrest. worried about getting an appointment right away and saying something like, “My court date is next Tuesday.”  To be sure, every criminal case begins with a first court date called an arraignment.  I’ve written extensively about that, and would encourage the reader interested in a detailed examination of what that proceeding is all about to read the linked articles.  Here, we’ll look at arraignments in more superficial terms of its position in the larger picture of a criminal or DUI case and how it gets started.

imagesSometimes, a person is brought before a Judge or Magistrate for arraignment while he or she is in custody after an arrest.  This can be done by video or by actually having the person come into a courtroom.  If you’ve already done that, then you can skip this article entirely.  For everyone else, imagine your notice to appear or instruction to otherwise contact the court (this can be on the ticket, on a separate piece of paper, like a bond receipt, or just be something the police tell you as you’re released) in the way you’d think of an email confirmation to register with a website; once you confirm your contact details, then all relevant notifications can be sent to the right place.  Before you wonder what the hell that means, let’s look at one of the most common situations following an OWI arrest: A person is released with a ticket that arises them to appear in court “on or before” a certain date, or to contact the court within so many days.  If the person just picks up the phone and calls the court, many times, the clerk will simply confirm the person’s address and then tell him or her that notice of when to appear will be sent.  That notice can be for something called an arraignment, a pre-trial date, or a combined arraigment/pre-trial; the details don’t matter as much as the fact that all a person needs to do is call the court to find out what to do next, and much of the time, he or she will be told to just wait for something in the mail.

In some cases a person is given a date to appear for an arraignment.  The short explanation of the arraignment is that it is a proceeding in which a person is formally told the exact charge(s) against him or her ( e.g., Operating While Intoxicated), advised of his or her constitutional rights (“You have the right to a lawyer…”), and given conditions of bond (“Do not leave the state without the court’s permission…” etc.).  For those released from lockup without posting any money, a bond amount (usually a few hundred dollars, at most) may be required, as well.  In many courts, depending on the charge, that arraignment can be “waived” by a lawyer so that a person does not need to go.  When a lawyer files the papers to waive an arraignment, a “not guilty” plea will automatically be entered for him or her, and the person and the lawyer will await a notice from the court to show up for what’s called a “pre-trial” date, where discussions about resolving the case are had between the lawyer and the prosecutor.

Of all the things I do in my criminal practice, none is more acutely serious, yet nearly as un-technical or less legalistic than handling probation violations.  There are really 5 things you should know if you’re facing a PV (also called a VOP for “violation of probation” in some courts, and a “show cause” in others).  We’ll set them out below and then look at each, in turn:

WCsTCWT41. Your lawyer is your most important asset Now is the time to hire the best-spoken attorney you can get.  Sure, you can go cheap, but how much good will the money you saved do you when you’re sitting in jail?  You don’t always get what you pay for, but you’ll almost never get what you don’t pay for.

2.  Facts matter.  What happened, and what did not happen, and the why of it all is important, especially if it helps your cause.  You need to make sure your lawyer takes the time to understand everything relevant about your alleged violation in order to make things better for you.

It has been a while since I’ve addressed how the location of a DUI case directly impacts the way things will turn out, but I find myself explaining this so often that I think it’s about time to look at it again.  This will be a VERY short article because it’s more about this simple, single point, rather than anything else, but its importance in terms of what happens to you cannot be overstated.  In the Detroit area, and that means primarily the Tri-County area of Wayne, Oakland and Macomb, the “where” of a DUI charge is absolutely critical.  Someone facing a DUI in one court could wind up on reporting probation with all kinds of classes and counseling and testing whereas, in a different court and under the same case facts, he or she could simply be required to do nothing more than pay a fine.  The location factor is so dominant that whenever my staff approaches me about a new DUI client or inquiry, my very first question is “where?”

32location2810aDrunk driving gets a lot of attention in the media, so it shouldn’t come as a surprise that consequences are getting harsher, and not easier.  This applies everywhere.  Yet even within that larger trend, it has always been the case that certain jurisdictions are more forgiving than others in drinking and driving cases.  In the broadest sense, Oakland County is considered “tougher” than either Macomb or Wayne, and you won’t find a single practicing lawyer who disagrees with that.  Certainly a few of the very toughest courts are located in Oakland County, but just a few days before this article was written, I was in an Oakland County court where my client was sentenced to a very short term of probation that was much less demanding than one could ever expect almost anywhere in either Wayne or Macomb County, so there is no hard and fast rule to any of this.  Beyond this purposefully general observation, I’m not about to publish any kind of “rankings” about who’s tougher than who, and will save those discussions for the safer confines of the attorney-client relationship.  Instead, we’ll stick to the larger point that in DUI cases, just like in real estate, the 3 most important things are location, location, and location.

I characterize DUI cases as “accidents of geography” because no one ever plans on getting arrested for drunk driving in the first place, so no one plans their route to make sure that if they do get pulled over, it’s somewhere better, rather that worse.  Instead, when a DUI happens, it just happens, wherever and whenever.  Even so, I know that even I breathe a sigh of relief when I hear my client’s case is location I know to be “easier.”  And let me be perfectly clear so that any Judge reading this understands; the idea of tougher versus more lenient, or one court somehow being “better” than another has nothing to do with judicial ability or integrity.  Instead, it is natural and understandable for a DUI lawyer to view things from the perspective of his or her client, and unless you’re some kind of masochist, it’s just human nature to want less consequences, rather than more.  I’m sure every single Judge out there thinks his or her way of handling these cases is the best (in much the same way that every Mexican restaurant owner probably thinks his or her salsa is the best), but the simple fact is that to anyone going through a DUI, less is ALWAYS more, and therefore always more preferable.

It’s hard to say this without sounding conceited, but I’ll try anyway: as a Michigan DUI lawyer, I am rather successful, both in terms of the excellent results I produce for my clients and the busy nature of my practice.  Probably more than anything else, I am most proud of being an honest lawyer, because it takes conscious effort to do that.  It would be much easier (and a hell of a lot more profitable) to be a lawyer who simply tells people what they want to hear.  In the context of a Michigan DUI case, it goes without saying that everyone wants to “beat” the charge against them, or otherwise have it “knocked out” of court.  Every person charged with OWI hopes that the evidence in his or her case is somehow flawed in a way that can get the case dismissed.  In theory, there are millions things that could be wrong with the evidence, but in the real world, those flaws don’t occur often enough to make getting your DUI charge thrown out of court anything but the exception to the rule.  Likewise, there are millions of theoretical reasons why an airplane could just fall out of the sky, but (thankfully), that’s also the exception, and not the rule.  As much as the airline industry works hard to makes sure that things go right, the police do the same thing when with dealing with a suspected DUI driver, as well.  To a pilot, most flights are routine.  To a police officer, arresting drunk drivers is routine, and, what’s more, he or she will probably never encounter a DUI case so complex as to leave him or her unsure of how to handle it.  The main goal in any criminal and DUI case is for the lawyer to make things better; to make them turn out the best they can for the client.  However, focusing solely on getting a DUI charge dismissed outright ignores the whole gamut of other important efforts that should, holistically speaking, be undertaken to produce the best actual results possible in any given case.

Jack_Sparrow_In_Pirates_of_the_Caribbean-_At_Worlds_End-134x300DUI arrests tend to follow pretty established patterns: most people are arrested after getting pulled over while driving.  These traffic stop situations can include cell-phone tips about suspected drunk drivers, or just an officer observing erratic driving.  When you’ve consumed enough to be over the legal limit, your coordination is compromised.  If not (and worse yet), then you have developed the tolerance of a hardcore drinker.  Sometimes the police come upon a drunk driver after being involved in a traffic accident, while other people actually make it to their destination (and can even already be inside, or at least out of the car) before being nabbed by a police officer.  The simple truth is that the police don’t usually make such crippling mistakes in drunk driving case that very many of them are ripe to be thrown out of court.  And even in those “out of car” situations, it’s rarely the police who screw things up, but rather the situation itself which makes it difficult to  “prove” that the person was actually driving the vehicle while intoxicated.  The point here is that while everyone wants to be the lucky exception whose case is dismissed outright, very few people actually are.  Yet from a business point of view, as a DUI lawyer, the better (and easier) money is had by focusing the client’s attention on all the things that could be wrong with the case, and then charging for a search-party effort to go looking for it.  The most accurate term for that is “fishing expedition,” and circus promoter P.T. Barnum’s observation that “There’s a sucker born every minute” is an on-the-mark, if not somewhat unkind way to describe those lured into handing over their hard-earned money for a chance to cast a line into that pond of broken dreams.

Me?  Well, I always feel exactly opposite Pirates of the Caribbean’s morally dubious Captain Jack Sparrow, who, when told that “there will come a time when you have a chance to do the right thing,” responded, “I love those moments. I like to wave at them as they pass by.”  It’s exactly here that being that honest person becomes costly, because some people, no matter how intelligent they are otherwise, can’t resist the appeal buying directly into what they want to hear, so they’ll ignore the scrupulous lawyer trying to be honest with them and go right to the one who will hard-sell the idea of making the whole case just go away. Being that honest guy means telling people the less appealing truth – that it’s not likely that the Judge, absent a significant police screw up, will throw the case out of court.  It means explaining to someone that although they may say they absolutely cannot have a DUI on their record, none of that  matters a bit to the prosecutor or the court.  Being honest means explaining that everyone, from the arresting officer to the Judge, has heard, ten thousand times over, how a DUI will ruin your life, cost your job, screw up your professional licensure, destroy your marriage, and just about  every other end-of-your-world story you could imagine, and such fears, expressed now, don’t matter because, in the real world, almost none of that happens – ever.  Amongst the thousands of clients I have represented, for example, I’ve never had any doctor, nurse, dentist, lawyer, CPA, or anyone else with a professional license lose his or her job; in fact, I don’t think I’ve ever had anyone ever lose a job of any kind because of a DUI, so it’s best to not to let fear cause you to blow a ton of money on the lawyer with the magic wand who says he or she can prevent the  apocalypse that’s not coming anyway.  It’s not that I’m unsympathetic, but I’d rather tell you, up front, that your case is (at least statistically speaking) not likely to be dismissed (and certainly not just because you “can’t have a DUI on your record”).  I have no heart to lie.  Sometimes, however, I wish I did.  It would be so easy to say, “Yes, I understand, and we can’t let that happen.  There are millions of things that could be wrong with your case.  If we can find just one of them to get your charges dismissed, then all of this will go away.  All you need to do is retain me so I can get started.”  And because I don’t work that way – because I’m honest –  there go thousands of dollars that, just like Captain Jack Sparrow, I’ll wave at as they pass by, right into someone else’s pocket.  Yet I wouldn’t have it any other way, and let me explain why…

Among the most common questions I’m asked by someone facing a 1st offense OWI charge is “What happens to my license?”  In my role as a Michigan DUI lawyer, one of my primary functions is to protect my client’s ability to drive.  In this article, I want to examine just that – a person’s ability to drive after a conviction for a 1st offense DUI.  We’ll look all 1st offense cases, including regular OWI (Operating While Intoxicated) and High BAC (OWI with BAC of .17 or More) charges.  To keep this article focused, we’ll skip getting into fees and points and anything other than how a 1st offense drunk driving arrest and a subsequent conviction for a drinking and driving offense impact a person’s driving privileges.

ChicoImportant here, and as I noted in the previous article on this blog about plea bargains in DUI cases, most people charged with a 1st offense will ultimately NOT be convicted of the charge originally made against them, at least amongst my clients.  This means that most of the men and women I represent who’ve been arrested for OWI or even High BAC will wind up getting some kind of a deal to lessen the offense, and thereby lessen the impact on their ability to drive.  Perhaps the biggest mistake a person will make is to go look up the charge on their paperwork and then start freaking out over the corresponding driver’s license sanction.  Since the outcome is very likely to change from that original charge, any actual restriction of your driving privileges won’t be nearly as bad as the penalties you first discover.

Another area of frequent misunderstanding is the status of a person’s ability to drive immediately after a DUI arrest.  The police are supposed to confiscate and destroy a person’s physical driver’s license upon arrest for drunk driving.  In return, they give a person a temporary, paper license.  This can take 1 of 2 forms:  A “Michigan Temporary Driving Permit,” or an “Officer’s Report of Refusal to Submit to Chemical Test.”  While there is a difference between these 2 forms, both of them allow a person to drive without any additional restriction whatsoever.  In other words, if you have one of these in your wallet, it allows you to drive in the exact same way you could before your arrest.  The “refusal” form is given to any person who refuses a breath test at the police station, and means his or her license will suspended for a year, unless he or she wins what’s called an “Implied Consent” appeal.  An implied consent suspension is completely independent of anything that happens to a person’s license as a result of the DUI case.  Anyone given the “Officer’s Report of Refusal to Submit to Chemical Test” must appeal to the Michigan Secretary of State (as directed on the back of the form) within 14 days or the suspension will kick in automatically.  This is a subject in its own right and falls outside the scope of this article, so we’ll leave it at that for now.  The bottom line is that when you leave the police station, you have all the same rights and privileges to drive that you had before your arrest.  What, if anything, will happen to those privileges comes later.  Let’s turn to how that works…

As a Michigan DUI lawyer, I handle some aspect of drunk driving cases on a daily basis.  I am in a local court for drinking and driving charges just about every day, as well.  Within the DUI section of this blog, I regularly post articles about some aspect of the DUI process, and often write about “making things better.”  I have tried to be specific by explaining how that means making the outcome of an OWI case more lenient, and avoiding negative consequences for my client.  To a certain extent, those consequences are avoided or minimized by working out a plea bargain, which means getting the original charge reduced (some people say, albeit redundantly, “reduced down”).  As I see it, this is an expected part of the deal when you hire a DUI lawyer like me.  I’m always somewhat puzzled when a new client seems surprised at my reassurance that we should have no problem negotiating away the more serious charge he or she is facing in exchange for something less serious.  In this short article, I want to do a quick overview of the last 7 DUI cases I’ve taken care of in court, because the plea deal in each of them materially improved the outcome for my clients.

plea-bargainsThe first thing a lawyer should do after bring hired for a DUI is to gather and examine the evidence, and look for a way to beat or “knock out” the case.  Absent a compelling reason otherwise, I usually obtain the dash-cam video from the police car, as well as the video from the police-station, where the breath test took place.  Even if the evidence clearly shows that the person was drunk and the police followed the proper procedures, there is reassurance in just knowing that.  In the real world, the number of DUI cases that get dropped is always the exception, rather than the rule.  Most drunk driving cases simply don’t get thrown out of court.  Statistically speaking, if you’ve been arrested for a DUI, it is far more likely that your case will go through the system rather than get dismissed because the evidence is faulty.  This makes getting the best plea bargain possible important to what will happen to you.

Looking over the couple of weeks before this article was written, I was able to obtain a good, solid plea bargain in the last 7 cases I handled.  I’m using 7 because it is a good sample without being repetitious.  I should remind the reader here, as I do in many other places, that in order to bring about the kind of results I do, I generally limit my DUI practice to Wayne, Oakland and Macomb Counties (the Detroit-area).  It is because I know exactly how things work in any given court that I am able to more successfully navigate within its system.  It’s just a simple truth that you’re better when you’re familiar with things.  Before we get to the results I produced, here’s a chart of Michigan penalties for 1st, 2nd and 3rd offense drunk driving cases:

In my role as a Michigan DUI lawyer who has been practicing for nearly 27 years (as of this writing), I have literally handled thousands of drunk driving cases.  If there’s one thing you can bet on, it’s that after the traffic stop itself, if you’re asked out of the car, you ARE going to jail.  This short article will be a bit of a departure from my usual informational, legal examination of some aspect of a DUI case and focus instead on the common, real world experiences of people dealing with a drinking and driving case.  For just about anyone pulled over and suspected drunk driving, being asked to get out of the car means having to perform some field sobriety tests (FST’s), and that, in turn, amounts to what you could call the “ballet of the bust.”  You may stand and balance and walk and count in an effort to prove to the police officer that you’re not drunk, but what you’re really doing, in a sense, is dancing and talking your way into the backseat of the police car.

0018-Photographer-Unknown-Harpers-1407-630Here’s the kicker:  You’ll never meet anyone who was suspected of driving drunk, asked out of his or her car to perform FST’s, and then let go.  I’m sure there’s someone out there who’s had that happen, but I’ve never met anyone who has, despite having had tons of clients who claimed they did just fine on those tests.  Some of these clients report that they were asked to do test after test after test until they’d eventually screw something up, while others maintain that they were given a roadside breath test (called a PBT for “preliminary breath test”) even though they recall having performed rather well on the FST’s.  Certainly not every client is wrong about that, but plenty do, to put it nicely, “remember” things differently when drinking is involved.  Look, when you’re legally drunk (or twice or more the legal limit of .08), you don’t process things that well.  If you did really well on the FST’s and you remember everything clearly despite being legally drunk, then you’re probably a professional drinker, and that’s even worse!  One of the more interesting things I see, and I see it rather often, is the client who remembers handling him or herself pretty well in front of the officer, and who then cringes while watching the patrol car video and seeing how clearly drunk he or she was.

As part of my first interview with a new DUI client, I’ll ask him or her about his or her initial contact with the police.  I have a number of Matchbox police cars and civilian cars (no, those are NOT for kids) on my desk that we use for the client to show how things went down at the scene of the arrest.  While I ask the client to line up the police car (or cars) in relation to his or hers, I’ll also ask about what the officer did as he or she approached the vehicle.  Soon enough, we’ll get to that part where the client was asked to step out of the vehicle.  Here, I need to take my time and go over field sobriety tests, and the order in which they were given, along with all the other details (including if you had been asked to do a heel-to-toe walk barefoot, on a gravelly, slippery or uneven spot).  Most of the time, the client will recall having done “okay,” on some of the tests, while perhaps admitting to not doing quite so well on some of the other tests.  No matter how it happens, the story always goes from being asked out of the car to being arrested for a drinking and driving offense.

As a Michigan criminal and DUI lawyer, about 2 of the most common questions that I’m asked are, “Am I going to jail?” and “Can you keep me out of jail?”  Even the quickest look at a sampling of DUI lawyer websites reveals that the whole “Avoid jail!” theme is used everywhere, by everyone.  It seems to be the strongest pitch a lawyer can make for your money.  I’m no exception; I make it, too, and I know that if I was in a pickle, staying out of jail would certainly be my first and biggest concern.  However, as I have pointed out in many of my various DUI articles on this blog (as well as my website), in the kinds of drunk driving cases and clients I handle, jail is usually not, for the most part, even on the menu.  But the cold truth that I have not seen addressed (until now) on any lawyer site is that some people do, in fact go to jail., and you can be sure that the folks sitting there didn’t book themselves in voluntarily.

jail-thumbIt is generally understood that, as a lawyer, talking about this isn’t good for business.  That’s why attorneys avoid it like the plague.  That’s also a disservice, however, to someone seeking real world information about what happens after a drunk driving arrest.  Of course, it’s my first goal to avoid jail as much as possible, in every situation possible, but even the WORST lawyer out there has the same goal, although perhaps not the skill to do it quite so well.  There is no hard and fast rule about who does get some jail time as opposed to who doesn’t, but there are a few helpful observations we can make to clarify things a bit.  On the one hand, if you’re facing a 1st offense DUI, you’re not really facing any jail time.  On the other hand, someone with a bad record has a much better chance of doing some time than a person with no prior record.  I addressed this in a recent article, and common sense is a pretty good guide here.  If you’re facing your 5th DUI, then yeah, you can count on some time.  Beyond that, however, there is a mix of variables that figures into all of this.  Some jurisdictions are really tough, while others are much more forgiving.  In fact, one Judge can be way more lenient than another would be in the exact same situation.  You also have to include the prosecutor in this mix of variables, as well, because not only do individual prosecutors from the same office have different approaches to things, but some offices are much more flexible than others.

Our discussion here will be limited to the things I handle my own practice: DUI cases and criminal cases involving things like suspended and revoked license charges, drug possession, and other misdemeanors and lower-level felonies, mostly for professionals or other good wage earners. meaning good people caught up in a bad situation.  For the most part, if you’re a solid citizen and haven’t been in trouble before, and you’re facing something like a DUI or suspended license charge, jail isn’t really on the menu at all.  Even if you have had a prior scrape with the law, including, perhaps, a prior DUI, you’re still probably safe in almost every one of the courts where I practice.  But here’s where things get dicey:

In part 1 of this article, I began my examination of the role of alcohol and substance abuse related issues in Michigan criminal, DUI and driver’s license restoration cases, and how my specialized background, which includes having completed a post-graduate program of addictions studies, makes my office different.  I pointed out that I balance my overriding mission to help people at all phases of their relationship to substances, but to never become “preachy” or seemingly fixated.  We looked at how alcohol and drug issues are interwoven into the vast majority of criminal cases, and of course, all DUI charges and possession cases.  I cautioned that, as much as I want to help people recognize and deal with substance abuse related issues, there are plenty of situations where I use my clinical knowledge to prevent a person from being perceived as having an alcohol or drug problem they don’t.  This is especially relevant in 1st offense DUI cases, where a drunk driving incident that just happens runs up against the court’s inherent “alcohol bias.”  In this second installment, we’ll turn our focus more to recovery, and how a deep knowledge of recovery and recovery processes is important to the win I guarantee in every driver’s license restoration case I take, and how all of these considerations kind of coalesce in criminal cases.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/01/drug-addiction-spiritual-recovery-1.1-289x300.jpgIn the context of a Michigan driver’s license restoration case, understanding recovery is everything.  A person must prove his or her case by what is called “clear and convincing evidence” (this is a high standard of proof; think of it as requiring, in part, that after the evidence in a case is presented, the hearing officer deciding it will not be left with any lingering or unanswered questions).  There are 2 primary things a person must show:  First, the person must demonstrate that his or her alcohol (and/or substance abuse) problem is “under control,” meaning that he or she can fix a sobriety date (this doesn’t have to be an exact date; someone might say, for example, “early fall of 2009,” or something like that), and second, that his or her alcohol (and/or substance abuse) problem is “likely to remain under control.”  This means that the person can show that he or she is a safe bet to never drink (and/or use) again, and has cultivated the commitment and the tools to remain sober.  This is complicated stuff, as anyone who has tried a license appeal before and lost knows all too well, particularly if the person was genuinely sober.

That I really understand recovery from the inside-out, the outside-in, and from all the clinical perspectives, as well, provides me with a huge advantage as a license restoration lawyer.  So much so, in fact, that I guarantee to win every case I take.  The catch?  I will only take a case for someone who is truly sober.  As far as I know, I’m the only lawyer who writes anything at all about sobriety, and I am completely certain that amongst every other lawyer out there, I have written more about sobriety than all of them combined – and HUNDREDS of times over, at that.  The job of the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers is more or less to “test” whether a person is sober or not, and they are very knowledgeable and do their best to examine the clinical information provided in a license appeal case through the lens of the legal requirements that must be met in order to win.  It is the lawyer’s job to make sure that the clinical evidence submitted meets those legal standards.  That task is a HELL of a lot easier when, as the lawyer, I fully grasp the clinical and practical realities involved in getting sober.  For everything that could be said here, the bottom line is this:  If you’re sober, then you know that sobriety is a journey, and not a destination.

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 https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/01/SA1.1.jpgtraining 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…