Because a substantial part of my Practice as a Criminal Lawyer involves DUI (technically OWI) cases, I speak with a lot of people, and answer a lot of questions about these cases. One of the more common questions I am asked is something like “should I get into some kind of Counseling or Treatment Program?” Here’s some good news: this is one question that has a pretty clear-cut answer.
Let me begin by first pointing out that my Practice is limited to Macomb, Oakland, and Wayne Counties. On occasion, I’ll take a case in St. Clair, Lapeer, or Livingston County, but I go no further, and thus I have no experience anywhere else. Let’s also begin with the kind of cases where the answer to that question is always “YES.”
In all Second Offense OWI (DUI) and Third Offense OWI (DUI) cases, the law requires that a person who is found guilty of, or pleads guilty to such a charge, to undergo some kind of Counseling or Treatment. In other words, if a person ends up with a 2nd or 3rd Offense DUI (All 3rd Offense Cases are Felonies, and there is nothing higher than a 3rd offense; even a person’s 7th DUI is only charged as a 3rd) and they do not “beat” the case, they must be ordered, by the Judge, into some kind of Counseling or Treatment.
Now, given that a person is going to have to get into some kind of Program, it only makes sense to start that process early. No matter what the facts of a person’s case, it can only help matters to have a Client who has already demonstrated the foresight to take action regarding a drinking issue. And make no mistake, because all 2nd and 3rd Offense DUI’s fall under what in Michigan is known as the “Repeat Offender Law,” it is generally assumed anyone with 2 DUI’s within 7 years, and 3 or more within their lifetime, has a problem.
As a Lawyer who represents people facing DUI charges, I can, in cases where “winning” or “beating” the charge is not likely, very often negotiate a better outcome for my Client if I can show the Prosecutor that the person has already been proactive enough to get some kind of help.
After a person has worked out a plea deal (or been found guilty after a trial), and before the Judge can sentence them, the Law requires that they undergo an alcohol assessment which is a written test about their drinking habits, history and the like. This is done by the Court’s Probation Department, who is also legally required, after scoring the person’s test results, to prepare a written recommendation for the Judge to review prior the person’s Sentencing. The Probation Department’s interview and subsequent recommendation is termed a Pre-Sentence Investigation (most often called a “PSI,”). Although this is a subject for a different article, it is important to note that pretty much in every case, in every Court, whatever is recommended in that “PSI” report is usually what the Judge orders. The “PSI” report is, by and large, the blueprint for what will happen at Sentencing. Therefore, having a positive impact at this phase of the case is probably the single most important thing person facing a DUI can do.
When the proactive person appears at the Probation Department for their PSI interview, they can show the Probation Officer with whom they meet that they have already begun the Counseling or Treatment process. This can have a huge payoff, not only in terms of perhaps getting a “break,” but also because as long as the person is involved with a legitimate, accredited program, it is highly unlikely that the Probation Department will recommend that they do anything other than complete the Program they’ve begun. If a person has not gotten into or begun a program of their own choosing, then the Probation Department will recommend whatever Program they pick, which can often be more expensive and time-consuming.
In other words, a person at least can look around at Programs that fit their budget and schedule when they are making the choice. The Probation Department of any Court, when considering a person who hasn’t undertaken this effort on their own, usually just recommends whatever program they pretty much refer everyone to, and that does not involve considerations for the persons budget, or schedule.
Finally, when the person appears before the Judge for Sentencing, which usually takes place at their second Court date, the fact that they are already in, or may have completed a program, tends to pay big dividends. I think it goes without saying that any Judge looking at 2 similar cases, with the difference between them being one person is already in Counseling, and the other is not, will feel more confident about the person who has at least gotten a head start by seeking help.
In First Offense DUI’s, however, things aren’t so clear. I most often advise First Offenders NOT to enroll in some counseling because to do so almost amounts to an admission that they have some kind of problem. In First Offense Cases, there is no legal presumption that a person has a problem; the Repeat Offender Law only arrives at that conclusion when a person has 2 DUI’s within 7 years, or 3 or more within their Lifetime.
This is not to say I would ever deter a person who even thinks they have a problem from getting help. It’s just that, if someone asks “would it look better if I got into some kind of Counseling?” I have to explain to them that what they think of as “looking better” may in the long run actually look worse. I tell them that if they believe they need some help, then by all means, get it. But if they do not think they need help, and are really only concerned about appearances, they may be asking for a more strict term of probation than they would otherwise get.
Of course, there are exceptions to the generalizations that I have outlined above. I have handled cases where the person arrested was “called in” by their spouse after leaving home rip-roaring drunk, only to be stopped by the Police. After being stopped, they have had the bright idea to “pour their heart out” to the Police Officer about their struggle with alcohol, and how they need help. Thereafter, they blew a sky-high BAC (breath-test result) at the Police Station. In a case like this, it’s unlikely the Judge will not be made aware of these facts, and getting into some kind of Counseling might not be a bad idea, considering that it’s likely to be ordered soon, by the Judge, anyway.
If there is a general conclusion to all of this, it’s that the final decision about any Counseling or Treatment should be made after the person sits down with their Lawyer and goes over their case. In my office, I have a number of programs that I will refer my Clients to, depending on their needs, finances, and insurance, if any. I have had Clients who have had an EAP (Employee Assistance Program) available, free of charge, through their employer, and in those cases I have always advised them, if Counseling or Treatment was warranted, to take advantage of it.
So, in answer to the question “should I get into some kind of Counseling or Treatment Program,” we have learned that, gererally:
In First Offense Cases, NO, unless there is a compelling reason to do so.
In Second Offense (2 DUI’s within 7 years) Cases, YES, because it’s coming anyway and can only help.
In Third Offense (3 or more DUI’s within a Lifetime) YES, for the same reason as outlined in Second Offense Cases.