Michigan Criminal Defense Lawyer Blog
Coming off of my last 2-part article about alcohol and drug problems, it seems appropriate to follow up with an article that applies to the majority of DUI cases where the person does NOT have any kind of underlying problem with alcohol or drugs, particularly 1st offense charges. This will also be a 2-part installment in order to keep it manageable. The simple reality is that OWI cases just “happen” to otherwise law abiding, upstanding people. These are the folks that I represent, and they are people who never imagined sitting in the back of a police car, and for whom the whole experience of being arrested seems like something from outer space. All of my clients are people with what is commonly called “social capital,” and many of them hold professional licenses. While they may consume alcohol socially, few of them ever engages in reckless or risky drinking behavior. If my last article was an attempt to reach out to the person who is at least beginning to see his or her drinking as problematic, this article is an attempt to reach out to those who know they do not have any such issues. The reason this article is even necessary, though, is because the court system has an inherent bias in favor of finding the drinking problem in everyone who faces a drunk driving charge.
This certainly isn’t the glamorous side of DUI work, but it is the most important part because every single person who goes through a DUI must be screened (this is done by completing a legally required written test) to determine if he or she has, or is seen as being at risk to develop an alcohol problem. The results of this screening are used by the Judge to determine what kind of education, counseling, testing and/or treatment will be ordered. The screening itself is done by the court’s probation department. As I mentioned above (and discussed in detail in the somewhat recent article I linked in the preceding paragraph), the whole court system has a built-in and acknowledged tendency to find that just about every DUI driver is at least at a notably increased risk to develop, even if he or she does not test out as actually having, a problem with alcohol. Keep in mind that in 2014, just less than one-quarter of one percent (.21%, as in point-two-one) of all the people arrested for a DUI in Michigan went to trial and were found “not guilty.” These statistics are about average, except that, without looking, I recall the percentage of “wins” in 2013 was closer to .17 percent. In other words, there is a better than 99.78% chance, no matter how you cut it, that no matter how badly you want to, and no much money you blow trying, you will NOT win at trial. By contrast, and no matter how you crunch the numbers, if you’ve been arrested for a DUI, it is nearly 99% likely that you will, in fact, go through the alcohol screening. In fact, the only way to avoid that is by having your case dismissed, and banking on that is not much of a plan for your DUI case.
The simple reality here is that if you’re facing a DUI, and unless it does get tossed out of court, you will be required to complete the legally required alcohol assessment test. We’ll talk more about the test itself later in this article. For now, however, you must realize that if your plan for “handling” your DUI was to go to trial and be acquitted, that leaves you rather unprepared for the assessment itself, even ignoring the whole alcohol bias thing. And, by the way, what I call the “alcohol bias” is acknowledged by experts (clinical researchers) and in their language is called “overdiagnosis.” It is accepted, as a matter of fact, that over-diagnosis is a very real and pervasive phenomenon in the court system. It may be easier to understand by flipping it around and asking if you’ve ever heard of a case where a court has “missed” an alcohol problem? They may catch problems that aren’t there, but they aren’t missing any real ones in the process. So what does this mean for someone facing a DUI?
Let’s begin by recalling the old adage that “A little knowledge is a dangerous thing.” In the world of DUI cases, it is a fact that, statistically speaking, DUI drivers are, as a group, more likely to have a drinking problem than the population at large. This has been validated by numerous studies, but rather than cite them, consider this simple, illustrative proposition, and then we’ll see how it gets stretched all out of proportion: If you had to go out and simply find 1000 regular people at random, and call them “group A,” and then you had to round up another 1000 people, but in this second group, you had to make sure that everyone has either a DUI in his or her past, or is otherwise currently facing a DUI, and we called them “group B,” no matter what tool or tools you used to assess the 2 groups, you would always find that “group B” has a noticeably higher incidence of problematic drinking than group “A.” That shouldn’t come as much a surprise. In group A, you may find people on medication who cannot drink, people whose religious beliefs don’t allow for the consumption of alcohol, people who simply do not like to drink, and so on. You won’t, of course, find much of that in group B. Makes sense, right?
Now, rewind about 30 years. Back then, in the mid 1980’s addiction wasn’t in the news all the time like it is now. If a celebrity had a problem, he or she tried to keep it private. There were no ads on TV for treatment centers, and we didn’t try to “talk” everything to death. In the mid-1980’s MADD was in its very infancy, having only been started in California back in 1980. Someone facing a 1st offense DUI wasn’t seen as having, or even being at much of a risk to have a “problem.” At worst, the person would face being sentenced to not drink and drive anymore. As the information age approached, and as alcohol and drug issues came more out into the light, rightly losing any component of shamefulness, society began to connect the dots between drinking, drunk driving, and drinking problems. Fast forward to now, and we understand, as a matter of course, that DUI drivers do, in fact, present as a group that is at a statistically higher risk to have a drinking problem. That means that a higher percentage of people from that group will have a problem than from the population at large. Somehow, though, this has been stretched to be a prophylactic covering everyone who goes through the DUI process. And here is the real kicker: Even if a person clearly does not have an alcohol problem, there is just about no one in the world, except the person him or herself, who really cares if he or she is forced to undergo some kind of alcohol education or counseling that is not needed as part of the sentence. At best, you’ll get a big, impatient sigh and an “Oh well,” because having to do some classes is then seen as “punishment” for picking up a drinking and driving charge in the first place. Better that than jail, right?
Except that when it’s you who has to pay for and attend classes, it’s not so easy to blow if off by saying, “Oh well,” especially when you know you don’t have a problem in the first place. Add to that the forced humiliation of feeling like your being treated as if you do, and you can get pretty resentful, pretty quickly. And this all raises a kind of angry question: Isn’t this supposed to be an assessment? If the end result is that I’m going to go to classes and stuff anyway, why waste time with all the “screening” stuff? Good question(s). Here’s the answer, and if you’ve been paying attention, it shouldn’t come as much of a surprise: Oh well. Before we go any further, let me be rather clear that I can help you avoid as much of this as possible, and I can do it better than just about anyone. Being a lawyer, or a DUI lawyer, is all well and fine, but none of that will help you much when you’re taking an alcohol assessment. You can spend your money and your time with some lawyer who knows how to take apart the Breathalyzer machine and put it back together blindfolded, but that will not help you one bit when it comes times to complete your alcohol assessment.
It didn’t take too long for me to figure out that if I was going to have any kind of “clinical” success with my clients on the screening, I’d need to understand the clinical realities of problematic alcohol and drug use assessment and diagnosis. It is right at this point, in a DUI case, where the clinical, legal and practical all converge to produce the very result that someone will have in his or her case. In other words, this is where you find out what happens to you. To complete this trifecta of clinical, legal and practical, I completed the coursework in a post-graduate program of addiction studies. In the same way that many patent lawyers have engineering degrees (an undergraduate degree in History is of precisely zero use in the patent world), I followed up my undergraduate degree in psychology, after receiving my law degree, with a post graduate matriculation in the addictions field. I learned plenty, but I also got much more than I bargained for; I want to use what I know to really help people. This is why I put up the last article about wanting to reach out to people who are just beginning to open up to the idea that their relationship to alcohol (or drugs) might be troublesome, while also wanting to protect people who don’t have such problems from being forced to get all the help they DON’T need.
In a perfect world, the legally required alcohol assessment would itself be a clinically sound “test” administered by an impartial substance abuse professional. In fact, if you didn’t know otherwise, you’d assume that would just be the case, right? Wrong. Years ago it was done this way, but in Michigan, or at least in the Metro-Detroit area of Macomb, Oakland and Wayne Counties, where I practice, the responsibility for administering and scoring this test (your answers to the questions on the assessment produce a numerical value, and that is “scored” using a key, which, then, in turn, is suppose to produce a “diagnosis” of where you are on the continuum from not having any kind of problem with alcohol to having a heightened risk to subsequently develop a problem, all the way to having a severe problem) has been handed over to a probation officer. Moreover, probation departments don’t use the kind of clinical assessment tools (tests) that are often used by real clinicians. They can’t, because they are not, after all practicing clinicians (or any kind of clinicians, for that matter), but, and this is a HUGE but, the probation officer IS completely and solely responsible for recommending what kind of sentence you’ll get (that included counseling and treatment). In the real world, just about every Judge, in every court, follows that recommendation pretty much to the letter. In other words, the recommendation that the probation officer comes up with after he or she gives you the alcohol assessment is really the blueprint for what is going to happen to you.
We’ll stop here for now, and pick up in part 2 with our examination of the alcohol assessment process in DUI cases and how DUI drivers (particularly in 1st cases) who don’t have a problem with alcohol can get herded through the court system and required to complete unnecessary classes and counseling because of that system’s inherent alcohol bias.