Michigan Criminal Defense Lawyer Blog
In Part 3 of this series, we undertook a very brief overview of DUI Trials. If the reader detected a theme something like “DUI Trials are very complicated,” then I succeeded in delivering my message. The larger point was simply that no one should go to Trial in a DUI case unless they have a rock-solid likelihood of winning, or at least emerging from it appreciably better off than if they had not.
After a DUI (meaning Criminal) Trial, a person is either found Guilty, or Not Guilty. Occasionally, a case results in a “hung jury,” meaning no verdict was reached, and the Prosecutor must then decide if they want to re-try the case, meaning do it all over again. Hung juries, while not incredibly rare, are rather uncommon; therefore, we won’t waste any of our time discussing that unlikely type of outcome.
Having started our discussion at the Arraignment stage in Part 1, through Pre-Trials in Part 2 and Trials in Part 3, we have ended up at the stage where a person facing a DUI (called the “Defendant”) will have either pled Guilty to some kind of charge after a Pre-Trial, or have been found Guilty, or not, after a Trial.
The next “legal” step in any Drunk Driving (or other Criminal) case is the Sentencing. This is where the Judge decides what is going to happen to the Defendant, and Orders things like classes, counseling, breath or urine testing, Probation, and, in really bad cases, like 3rd Offense Felony DUI’s, Jail.
Obviously, there will be no Sentencing if a person has been found “Not Guilty” after a Trial. In that case, a person simply goes home, and the matter is ended.
In every DUI case, however, where there has been a either Plea, Plea-Bargain, or Sentence-Bargain (or a Verdict of Guilt, if there was a Trial), there is a step BEFORE the actual Sentencing: The PSI, or Pre-Sentence Investigation. A PSI is required by Law. We’ll explore it in detail shortly (this subject is rather involved, so we’ll use two installments just to cover it), but before we do that, it is important to understand that the Pre-Sentence Investigation, and the legally required alcohol assessment test that is a part of it, will determine, more than anything else, what actually happens to a person at Sentencing. To put it simply, the PSI and its accompanying recommendation is the blueprint, or script, for what kind of Sentence a person will get.
Michigan Law requires that prior to Sentencing someone for a DUI, the Court MUST order that the person undergo an alcohol assessment test. The Test is then to be scored, and the Probation Officer (or, in the 72nd District Courts in Marine City and Port Huron, the Substance Abuse Evaluator) must make a written Recommendation to the Court advising the Judge what kind of Sentence should be imposed, focusing as much on counseling, rehabilitation, and breath and/or urine testing as anything else.
I have often observed that the importance of this step is pretty clear to anyone with a prior DUI. Whatever Sentence they received was UNDOUBTEDLY exactly, or almost exactly, what was recommended in their PSI.
Someone without any prior DUI experience cannot “instinctively” know this. However, once the process has been fully analyzed and explained, it should be clear that this step, more than anything else, is the key to avoiding as many of the potential negative consequences of a DUI as possible.
If a person does well at this stage, and the outcome, meaning the results, or what actually happens to them, will be much better and more lenient. By contrast, if a person doesn’t do so well, they can expect to be making some new friends in whatever classes or counseling or rehab is Ordered, and getting to know the person who collects their breath and/or urine samples several times a week.
As I noted before, in EVERY single Court in the Tri-County area, the required PSI is completed by the Court’s Probation Department. Just as the PSI itself is a step in the DUI process, there are several “steps” to the whole Pre-Sentence Investigation. While it may seem like a homespun oversimplification, in a very real way the whole PSI process can be called “the big 3.” That’s because there are really 3 facets to the whole process: Where you’ve come from, where you’re at, and where you’re going.
1. Where the person comes from. Were they raised in a good and supportive environment, or was their upbringing fraught with conflict. The real inquiry here is to see if they bring any “baggage” from their past into their present, be it unresolved emotional conflicts, or simply a family history of (and therefore a genetic risk factor for) alcohol, mental health or substance-abuse related problems. This, of course, raises questions about their problematic drinking (and remember, even if a person clearly does NOT have an alcohol problem, getting a DUI is, in and of itself, does at least look like some degree of problematic drinking). Are they escaping from the past? Are they self-medicating the pain caused by it? These are important questions that will be examined.
2. Where the person is “at.” Someone can have had the most ideal upbringing in the world, but if their spouse just left them, they are being laid off from work, their home is either in, or going into foreclosure, the dog died, and they just found out that they have a serious medical condition, the “were they’re at” aspect of their life is clearly NOT stable. Ironically, the very person whose hard luck story might prompt us to buy them a beer will be seen as having an unstable situation by Probation. And when Probation even thinks it sees a problem, they’ll set out to fix it…
3. Where the person is going. This is really the whole point of the PSI. The Probation Department’s very job is to assess a person, consider their background, their current living situation, the facts of their DUI, and then make a Recommendation to the Judge as to what he person should do, or not do, or learn, in order to prevent another DUI, and to otherwise stabilize their life.
Think about that for a moment; stabilize their life. That almost sounds a little too much like “big brother,” doesn’t it? And, in a sense, it is. Having any part of the government, including the Criminal Justice or the Court system involved in your life is intrusive. If the reader of this article happens to be out on Bond in a Court that, as a condition of that Bond, requires any kind of breath or urine testing, then you’ve already had your first taste of this intrusiveness. And if you’re being required to test for alcohol as part of your Constitutional presumption of innocence, how much easier do you think will become once a Plea or Conviction is had? It won’t!
The Plain fact is that it is a big part of my job, as the Lawyer for someone facing a DUI and who is not otherwise going to somehow “beat” the case, to keep the Court OUT of their life as much as possible. In that regard, getting “good” or “better” results can be calculated by how much I can help my Client avoid the negative consequences of a DUI, and how much I can keep the machinery of the Court, with its various classes and counseling and testing and Probation and all the other stuff it throws at someone, out of their life.
Now, Let’s identify the “steps” of a PSI before we examine them:
- Setting the Probation appointment
- The background paperwork
- The actual Probation interview
- Taking the alcohol assessment test
- Scoring of the alcohol assessment test by the Probation Officer
- Completion of the Sentencing Recommendation by the Probation Officer
- Reviewing and correcting the PSI and Recommendation
- Commenting on the PSI and Recommendation to the Judge at Sentencing
Next, let’s look at each, in turn:
1. Setting the Probation appointment.
This is usually done in the Court on the day (usually the day on which a Pre-Trial has been scheduled) a person pleads to some Drunk Driving Offense, or, if they go for broke, hold an actual Trial, and wind up being found guilty of some DUI-related charge. Depending on the Court, the person may be given a packet to fill out. This is always a biographical inquiry. A person will be asked about their childhood, education, employment history, and the history of their drug and alcohol experimentation and use. They will be instructed to complete the packet and bring it back with them on the day of their appointment. When they return for their appointment, they will not only be interviewed by a Probation Officer, they will also be handed the mandatory alcohol assessment questionnaire (test) to fill out.
In a few Courts (like the 37th District Court in Warren), the alcohol assessment test is attached to and part of the “packet” a person is given.
In other Courts, (notably the 47th District Court in Farmington Hills), instead of just making an appointment to return for an interview with a Probation Officer, a person will be handed the alcohol assessment test and asked to have a seat in the Probation Department waiting area and complete it, and then hand it back, at which time an appointment will be made for their return interview date.
Key in all of this is to make sure the Client has been properly prepared to answer the questions in that assessment test. This is why, in my Office, I will spend a good hour or hour and a half the first time I meet a new Client going over the test That first meeting typically lasts between two and two and a half hours. This way, if the Client winds up having to take it the very first time we go to Court, they will at least be adequately prepared.
2. The background paperwork.
The most important word here is “background.” Any “packet” a person fill out will, first and foremost, be biographical in nature. More than anything else, this is the basis for the “where you’ve come from” aspect of the PSI process that we discussed earlier. A common mistake that I see Clients about to make is being all too ready to talk about some event in their past as at least a partial explanation of or justification for their current DUI situation. This can be something as simple as a “messy divorce” in their recent past. Often, the Client will try to explain their lapse of judgment in packing up the DUI for which I am representing them as just part of a run of hard luck. “This hasn’t been a good year for me. I was divorced last year, and it was hard.”
Whatever the person feels, going in and saying that to a Probation Officer is no different than saying. “I have some unresolved problems in my life and I have been unable to find neither a good solution to nor a good coping mechanism to deal with them. On the night I was arrested, I just felt overwhelmed and thought I’d drink the pain away. But honestly, I don’t need any help. I will figure this out on my own somehow, even though my best idea so far has been to go out, get drunk, and then drive.”
Obviously, that is NOT a good plan…
3. The actual Probation interview.
If a person has not been thoroughly prepared for this, it can be a minefield and a nightmare. On the other hand, with just a little work, a person CAN be adequately prepped for this meeting, and doing well, or at least NOT making any significant mistakes, can be rather easily achieved.
So what is the secret? Well, as much as I have tried to be forthright and honest to this point, then I trust the reader will understand that here, I must reply like the magician who is asked, “how did you do that?” Plus, of course, this is all part of that two to two and half hour first meeting I have with a new Client, and if it takes me that long to go over it in person, it would take forever for me to completely write it out. I like writing; that much should be obvious, but I don’t like it that much…
Still, there are a few points worth noting.
First, we must remember who becomes a Probation Officer. And let me point out here that I am the first guy to bristle when anyone makes a derisive comment or observation about Lawyers. Still, I must admit that my Profession suffers from no shortage of jerks. That said, I know many fine Probation Officers, but can also point out that there is no shortage of jerks in their ranks, either. Many Probation Officers have backgrounds in Criminal Justice, and yet did not make it into either Law School or Law Enforcement. Thus, it is not terribly uncommon for a Probation Officer to be a Cop or Lawyer “wanna be” who didn’t make it. And even if this describes a minority of Probation Officers, it is always safer to proceed as if they are a career-frustrated Cop “wanna be” rather than not. Better to be safe than sorry.
In their defense, however, ANYONE who sits in a Probation Officer’s chair for any length of time will inevitably become a bit cynical. Their day-to-day experience involves being lied to almost constantly.
Thus, when First-time Freddy shows up for his Probation interview, he is quite likely to point out how horrible this whole experience has been, and how it has taught him a lesson and that he will never be back…
Yet the Probation Officer can raise his or her hand, stopping Freddy in mid-sentence, and tell him, in response, something like this: “See those file cabinets here in my office? I have 420 active Probationers right now. About one-third to maybe half of them, meaning about 140 to 220 of them, have been on Probation before. Not to doubt you Freddy, and I certainly hope you’re right, but you’ll excuse me if I don’t jump on the ‘this will never happen again’ bandwagon. The proof, as they say, is in the pudding.”
Add to that the endless number of people on Probation who miss a test, or test positive for alcohol or drugs, or who otherwise violate a term or terms of their Probation during their time, and you can understand why Probation Officers tend to be, to put it nicely, rather skeptical. I always tell my Clients that “if you or I were made Probation Officers today, and we met a year from now to compare experiences, we would be saying things like ‘do you know you can tell if they (meaning a person on Probation) is lying? See if their lips are moving.'”
Accordingly, part of what I will explain to my Clients and instruct them to do at the meeting is to NOT lose sight of the fact that the Probation Officer, no matter how cool or nice he or she might seem to be, is NOT their friend. The Probation Officer’s job is to see how much they should get involved in the person’s life, not how much they shouldn’t.
In Part 5 of this article, we will pick up with the next step in the Pre-Sentence Investigation Process, the mandatory alcohol assessment test and the scoring of that test by the Probation Officer. Thereafter, we will examine the remaining steps in the PSI process, and then, in the final installment, will conclude with a look at the actual Sentencing.