Michigan Criminal Defense Lawyer Blog
In Part 4 of this article about the steps in a Detroit-area DUI, we began our rather detailed inquiry into the various “steps” of the Pre-Sentence Investigation, or PSI process. We covered the first 3 steps:
1. Setting the Probation appointment 2. The background paperwork
3. The actual Probation interview
Here, in this fifth part, we will cover steps 4 and 5 of the PSI process:
4. Taking the alcohol assessment test
5. Scoring of the alcohol assessment test by the Probation Officer.
This is an intense subject, and these are serious subjects. Given their importance, we will devote this entire installment to these 2 topics. This will be a long piece, but as I often point out, there are no shortcuts to doing things the right way, and that includes studying and explaining them.
In the final 2 installments of this series, we will cover the remaining steps (6 through 8) of he PSI process:
6. Completion of the Sentencing Recommendation by the Probation Officer 7. Reviewing and correcting the PSI and Recommendation
8. Commenting on the PSI and Recommendation to the Judge at Sentencing
Here, we will resume our scrutiny of the steps of the PSI process by picking up with the alcohol assessment test.
4. Taking the alcohol assessment test.
I want to be emphatic about this: THE ALCOHOL ASSESSMENT IS THE MOST IMPORTANT PART OF THE WHOLE DUI AND PSI PROCESS. What happens at this stage has more impact on the kind of Sentence a person gets for a DUI than all the other stuff combined.
In other words, if you do well here, things will be a lot better, meaning more lenient, than if you don’t. And to be clear, these tests are scored numerically. A low score is good, while a higher score spells trouble. Thus, the higher the score, the worse the result. Conversely, the lower the score, the better the result, meaning the less likely a person is to have an alcohol problem, or have the potential to develop one. Therefore, a low score is the ultimate goal when taking an alcohol assessment test.
So how do you get a low score?
This really cuts to the heart of the alcohol assessment testing process. Remember, and it is pretty common knowledge, anyway, that there is at least an appreciable risk that anyone who gets a 1st Offense DUI has an alcohol problem (or at least the potential for one to develop). It is conventional wisdom, and a Legal certainty that (meaning that the Law presumes so) anyone who gets a 2nd DUI does, in fact, have and alcohol problem. Under Michigan Law, a person who gets a 2nd DUI within 7 years is categorized as a habitual offender, will have their Driver’s License Revoked for at least 1 year, and will be required to prove to the state that their alcohol problem is both under control and likely to remain under control.
It is against this background that the score of an alcohol assessment test is calculated. If a person scores higher than they otherwise might have, but not so high as to indicate the presence of an alcohol problem, they are quite likely to be Ordered to complete some type of alcohol education classes. If they score high enough to indicate at least the potential for an alcohol problem to develop, then they can count on even more classes, and perhaps some kind of counseling. If they score higher still, and are found to have even an early stage alcohol problem, they will be undergoing more involved counseling, or even rehab.
Of course, breath and or urine testing to a greater or lesser degree will be part of any of the above scenarios.
By contrast, if a person scores out as NOT having any kind of alcohol problem, nor even the potential for one to develop, then the whole DUI thing can be seen as an isolated, out-of-character incident which does not indicate the need for any classes, counseling, or regular testing.
To make matters even more confusing, many of the “better” answers on any alcohol assessment test are not those that seem to be “better” at first glance. In fact, quite often, the “better” answer is rather counter-intuitive.
This makes all the time spent preparing for the alcohol assessment worthwhile. In fact, with the sole exception of finding oneself facing a DUI charge that can be “knocked out” or beaten somehow, the single best investment a person can make in handling their case is finding a Lawyer with a comprehensive knowledge of the alcohol assessment testing process and putting in the time preparing to undergo that test.
When I use the term “alcohol assessment test,” I am not referring to any particular, or single test, but rather any of a large group of tests that all claim to do the same thing: measure whether a person either has, or has the measurable potential to develop an alcohol problem. That said, almost all of the Courts in Macomb, Oakland and Wayne Counties use one of a few alcohol assessment tests. Usually, a person undergoing an alcohol assessment after a DUI will be handed either the MAST, or Michigan Alcohol Assessment Test, or the NEEDS Assessment. There are, quite literally, hundreds of other alcohol assessment and screening tests.
Does this mean, then, that “doing well” on any particular test means being prepared specifically for it? How could anyone possibly learn the “right” answers to hundreds of different tests?
As it turns out there is a “secret” to all of this. It has nothing to do with the Law, or any Legal strategy. Instead, it requires a thorough understanding of alcohol and substance abuse problems. These are not things that are or can be learned merely by practicing Law and handling DUI cases. Understanding the nuances of alcoholism and substance abuse and dependence requires study. Intense study. And only by learning about the onset, development and progression of alcohol and substance abuse problems can a person really begin to understand how the alcohol assessment and testing process works, and fits into the whole spectrum of diagnosing and treating those problems. In other words, you cannot really know how an alcohol assessment test tries to diagnose an alcohol problem until you fully understand an alcohol problem.
In my case, this has been a field of study in which I have engaged for over 20 years. I specifically deal with the onset, progression of and recovery from alcohol (and drug) problems, as the basis of my work every day. Look around this blog. Read some of my more than 100 Driver’s License Restoration articles, every single one of which deals with the recovery from an alcohol problem. Driver’s License Restoration Appeals result from License Revocations for multiple DUI’s, and in order to win back a License, a person must demonstrate, by “clear and convincing evidence,” that his or her alcohol problem “is under control,” and “is likely to remain under control.”
In other words, in a Driver’s License Restoration Appeal, a person must be able to prove that they are Sober, and in Recovery.
Turning back to alcohol assessment testing in the PSI stage of a DUI case, how does a person learn how to do “well” on such a test? Should they try and learn which particular test the Court where their case is pending administers, and then try to master it? What happens if they show up, ready for test “A,” only to discover that they will be taking test “B?”
The “secret” to doing well on the alcohol assessment test is to learn the 5 “markers” of an alcohol problem. No matter which test a person takes, and no matter how many more hundreds of new tests are developed in the future, there are only 5 areas of inquiry these tests can make. It does not matter if a person is given a short, 24-question test or a long, 150-question test. Each and every test can really only ask about 5 things. They can ask 4 or 5 questions about each, or 30 questions about each. The plan is to understand what those 5 “markers” are, and then prepare accordingly.
Doing that exceeds the scope of this article. It account for at least an hour to an hour and a half of the time spent at my first meeting with a new Client. I want to introduce them to these concepts. It’s not that I expect them to remember all this; we’ll go over it again, later. The idea, however, is to begin making these markers, and their significance, understandable to the person.
If a person cannot sufficiently explain what these 5 markers mean, then they are certainly not ready to take any kind of alcohol assessment test:
- Family history of alcohol and/or substance abuse problems
- History of social comment
- History of blackouts
- Social conflict, and
- Effects threshold
Understand these things, and better results will follow. If a person hasn’t heard about and has otherwise not been made to understand these things, then the very best they can hope for as they take the alcohol assessment test is to simply be lucky. Remember, an alcohol assessment test sometimes relies upon the less obvious, counter-intuitive answer to be overlooked as the better choice. The people who devise these tests know that everyone is going to try to do well upon them.
This example might help to illustrate what I mean. Imagine you are sitting across the desk from the Probation Officer doing your PSI interview for a DUI. For our purposes, say your BAC (breath test result) was .15. The Probation Officer asks “how drunk or not did you feel when you decided to get behind the wheel?”
Almost instinctively, many people might say “I didn’t think I was that bad. I’d never drive if I thought I was going to endanger someone else. I mean, I thought I was okay, I guess, or at least not that bad.”
After all, we generally want to explain any lapse of judgment in the most positive (meaning the least negative) light possible.
Except that the answer above is about the worst response a person could give:
On the one hand, if the person is being completely honest, they have just said that they can be nearly twice the legal limit and still not feel too drunk to drive. If true, they’ve proven that they have developed a pretty good tolerance to alcohol, and they are a pretty experienced drinker.
On the other hand, if that statement isn’t true, then they have basically said, “I’m a liar.” And to the Probation Officer, that means if the person is minimizing the extent of their intoxication, then everything else they say needs to be taken skeptically, because the person’s credibility is questionable, at best.
If the person had been my Client, I would have prepared them for this. They would have known to respond like this: “I knew I was drunk, but the alcohol impaired my judgment, and I just thought I could make it home without getting caught.”
No apparent high tolerance to alcohol, no minimizing (i.e., lying) and therefore, no problems… Instead, the Probation Officer was given an honest, and honest-seeming answer that adequately explains how the person wound up in this situation.
5. Scoring of the alcohol assessment test by the Probation Officer.
Once the questions on the alcohol assessment test have been answered, the Probation Officer has to score it. For what it’s worth, this is qualitatively different from the kind of test interpretation done by most alcohol and substance abuse Counselors. Those professionals, with their training and experience, will often give far more comprehensive alcohol assessment tests that, in addition to being scored, require interpretation and have certain types of “self-validating” questions that measure a person’s truthfulness, defensiveness, and the extent to which they try to present themselves in a favorable manner. I’ve often wondered, when such a test describes someone as trying to portray themselves in a favorable manner, how should they have tried to portray themselves, in a negative manner? Chief amongst these tests, NONE of which are used by Probation Officers, who are instead limited to using only tests that can be scored, and not interpreted, is the SASSI-III, which stands for Substance Abuse Subtle Assessment and Inventory, 3rd version.
There is a scoring “key” to every one of the tests used by a Court’s Probation Department. A person will answer the various multiple-choice, or yes/no questions, and then their answers will be compared to the scoring key. Certain responses will be assigned a designated number of points. Thus, a scoring key may say something like a “yes” answer to question number 4 gets 1 point, and a “no” answer to question number 23 is worth 2 points. In the end, the total number of points is compared to something like a grid. In the MAST test, for example, one scoring grid goes like this (this is a reprint from a couple of actual scoring keys, including its awkward layout):
* Alcoholic response is negative ** 5 points for Delirium Tremens *** 2 points for each arrest
SCORING Add up the points for every question you answered with YES, for Q23 and Q24 multiply the number of times by points:
0-3 No apparent problem 4 Early or middle problem drinker 5 or more Problem drinker (Alcoholic)
Yet another scoring grid assess things differently:
0-2 No apparent problem 3-5 Early or middle problem drinker 6 or more points Problem drinker
To make matters worse, there are even more scoring grids with different scoring assessments. One of those others considers a score of 0-4 to be indicative of no problem, calling such a total “non-alcoholic.”
As the reader has no doubt figured, then, a score of “3” can either be a problem, or not, simply depending on the scoring key the Probation Officer has on his or her desk. And that means that a person who scores 3 in one place will be in a much more difficult situation than a person who scores 3 in another, where a different scoring key is used.
This makes scoring less than 3 points very important. This means a person cannot really afford more than 2 points.
And the really bad news here is that in all of these scoring keys, a DUI Arrest is 2 points. Thus, if a person is taking the MAST test for his or her first DUI, they will automatically score at least 2 points. If they’re taking the test for a 2nd Offense DUI, they will automatically score at least 4 points. This means that, in a 1st Offense case, there is little or no headroom to score any more points, depending on which scoring key is being used.
Remember what I said toward the beginning of this installment about anyone who has not been properly prepared to take the alcohol assessment test needing to be lucky?
Do you feel lucky?
The main point to be made is that there is simply no shortcut to understanding and being prepared for the legally required alcohol assessment test. How well or poorly a person does upon it determines, more than anything else, what kind of conditions will be imposed upon them at Sentencing. It is, without a doubt the single most important aspect of any DUI case that is legally sound enough to not get “knocked out” somehow. And that, of course, describes most DUI cases.
When looking for a DUI Lawyer, a person should ask about the Lawyer’s understanding of the alcohol testing process. No matter how cheap any Lawyer may come, he or she is no bargain if they don’t have a comprehensive understanding of the nuances of the alcohol assessment testing process and are not able to thoroughly and adequately prepare the Client to undergo it.
Being a DUI Lawyer means knowing this stuff in and out. Some Lawyers confuse being a Trial Lawyer, well versed in the rules of Evidence and the rules of Trials, with being a DUI Lawyer. That’s just being a Trial Lawyer who tries DUI cases, but it doesn’t bring anything to the table for those cases that are not won at trial, beyond a huge legal Fee. In order to really help a Client through a DUI, the Lawyer needs to know more about alcohol and substance abuse problems, and how they are diagnosed through the testing process, than anybody else in the Court system. Otherwise, all a DUI Client can hope for is to be lucky. And if luck meant anything, they wouldn’t be here in the first place…
In Part 6 of this article, we will cover steps 6 and 7 of the PSI process (Completion of the Sentencing Recommendation by the Probation Officer and Reviewing and correcting the PSI and Recommendation), and thereafter, in the final installment, move on to why all of this matters so much – the Sentencing.