Articles Posted in Probation

In my capacity as a DUI and driver’s license restoration lawyer, I deal with positive alcohol tests and the problems they cause just about every single day. This article will focus on failing a PBT and/or an ETG test in a DUI case. This happens either when a person is required to test while on bond, or while he or she is on probation. We’re going to be blunt and honest in our discussion here. In that context, it’s almost a given that you’re not here reading this because you want to know how to avoid failing an alcohol test in the first place, but rather because you have already failed one. Sure, there are cases where a person is the victim of a false positive result, but we won’t waste much time on that because the vast majority of positive results do, in fact, accurately reflect that a person had been drinking. For the most part, this article will focus on those real life situations where a person has been caught, despite being ordered to refrain from consuming alcohol, and now faces going back to court for a bond or probation violation.

The reader may be surprised to learn how often this happens. Because I am a DUI lawyer, and not some guy who takes on every kind of case under the sun, almost every client in my busy office comes in for something related to either current or past OWI case, or at least something similar. I begin almost every workday in some court or other for a DUI or DUI-related case. Over the course of my years, I have been involved with, quite literally, more failed alcohol and drug test violations than I could ever count. I’ve handled violation cases for people in every kind of occupation, from doctorate-level professionals, successful business types, to folks who are changing careers. The point I’m making is that getting caught happens to people of every stripe. What I want the reader to understand is that this has less to do with my practice than the experience of the court system and the people that go through it. It’s no more surprising for a surgeon, nurse, accountant or lawyer to wind up violating a “no drinking” condition of bond or probation than it is for Snake the Biker to do so. Accordingly, alcohol and drug testing is the great equalizer, and here, one’s social capital doesn’t count for very much, because positive is positive, whether you are the Executive Vice President of a Fortune 500 company or you empty trash cans at the mall.

This, of course, explains why probation officers and Judges are skeptical, and can seem almost outright cynical. They become that way over time. This will happen to anyone who plays some part in this system (including me, except I get paid to work past it). With time and experience, you hear and see it all, from the occasional false-positive test to all kinds of bizarre circumstances, with offers of just about every excuse you could ever imagine. In fact, one of my all-time favorite explanations that people give for testing positive for alcohol actually has a name – the “NyQuil defense.” You can probably guess the rest. I know better than to try using it, but it wasn’t long ago that I saw a lawyer standing next to a client in a local court and as soon as cold medicine was brought up, the Judge, quite literally, waved it off with her hand and said something like, “Oh no, we’re not even gonna try the NyQuil defense.” I was on my way out of the courtroom, but I sure hope that lawyer had a better “plan B” than his “plan A.”

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 the course of every DUI case that goes through the court system, and before ever being sentenced by the Judge, a person must, by law, complete a mandatory written alcohol screening test and meet with a probation officer for an information-gathering interview.  The results of that screening test (it is calculated using a numerical scoring system) and probation interview are used to prepare a sentencing recommendation (this too, is required by law) that is sent to the Judge to be used in deciding exactly what sentence to hand out.  In the real world, this step is THE most important part of a drunk driving case because it directly impacts what will happen to you more than anything else.  Accordingly, being prepared for both the written screening and the probation interview is critical to producing the best outcome possible.  In my DUI practice we’ll spend several hours (at least) in preparation for this, including having a separate appointment and prep session a few days before you go for your interview with the probation officer.  Among the herd of DUI lawyers, I am uniquely qualified to help with this, having studied and worked with alcohol and drug issues for over 2 decades as well as having completed a formal University post-graduate program of addiction studies.  The development, diagnosis, treatment of and recovery from addiction disorders is at the core of everything I do, every single day.

Preparation for the alcohol screening test begins at our very first meeting.  I typically use about an hour at that first appointment to going over (or, as I say, introducing) the questions you’ll be answering because I believe this information is best absorbed by being presented twice; initially at that first meeting, and then again, typically at our second office appointment right before you go in for the meeting with probation.  This whole process of alcohol screening and meeting with probation is variously referred to an assessment, a PSI (for pre-sentence investigation), and/or a screening.  Whatever it’s called, it refers to the procedure and process wherein a person completes the written alcohol screening test (to confuse matters more, the testing instrument itself is sometimes called a “substance abuse assessment”), meets with, provides information to, and is also interviewed by the probation officer.  All of this is used to formulate that written sentencing recommendation given to the Judge.  It is a critical mistake to allow the client to take the screening test and/or walk into that probation meeting without having gone over everything in order to make sure he or she is thoroughly prepared.

Perhaps the biggest and most common miscalculation I see lawyers make is assuming that, when they speak at the sentencing, they can somehow convince the Judge NOT to follow the probation department’s recommendation in some significant way.  It doesn’t work like that; it never has, and it never will.  When you walk into court on the day of sentencing, your lawyer is required to get a copy of the sentencing recommendation from the court clerk and review it with you.  In fact, the Judge will specifically ask if you’ve seen the recommendation, and if there are any errors within it that need to be corrected.  Later, you and your lawyer will be asked for any comments about the recommendation itself.  This is more a formality rather than anything else, because in the real world, pretty much every Judge, in every court, follows the recommendation, if not to the very letter, then damn close to it.  To put it another way, the sentencing recommendation is really the blueprint for what’s going to happen to you, and there is simply no Judge who is going to disregard any substantial part of it.  This means, then, that the best and only real chance you have to influence what’s recommended, and, in turn, to affect what ultimately happens to you, is to be prepped and ready for the screening and the probation interview.  It is a fool’s errand, really, to just show up in court and start arguing against the recommendation as it sits in the Judge’s hands.  That’s no better than pissing in the wind.  Indeed, if you are not carefully readied for the whole PSI process, then you are stumbling blindly through your DUI case without any kind of plan.