Michigan Criminal Defense Lawyer Blog
As Michigan DUI lawyers, one of the things we often have to explain to people is why the court is so interested in their drinking habits and history. This is particularly relevant when someone facing a DUI wants to explain, up front, that he or she isn’t a big drinker. However true or not that may be, some people think that just because they say they don’t drink a lot (or very often), then that’s enough, and no further inquiry is warranted.
Michigan law, however, requires any person who is convicted of or pleads guilty to a DUI offense to undergo a mandatory alcohol use assessment (variously called a “substance abuse evaluation,” an “alcohol screening,” or simply a “screening”) before he or she is sentenced by the Judge. This is done to determine whether he or she has, or otherwise identifies as being at risk to develop an alcohol problem. This really the single most important part of the whole DUI court process, but our focus here will be on why that’s the case, rather than what to do about it, which we’ll examine in a future installment.
The primary reason underlying why the court system is so interested in a person’s alcohol use may not even be consciously understood by those work in it. Many people within the court system only know that things are done the way they are essentially because that’s the way they’ve always been done. In other words, everyone just accepts that a person going through a DUI case must be screened for a potential alcohol problem before being sentenced simply because the law requires it. Why this requirement ever came about in the first place is important, however, and really helps put things into perspective.
There are some things in life that have been “known” for so long, it’s hard to trace back their discovery. Research can confirm some of our long-held beliefs, or, in other cases, it can show that what we accept as “common knowledge” is just plain wrong. That’s as true in the context of a Michigan DUI case as it is for anything else. Consider these personal, real-life examples:
My parents have passed on, but my mom, who died in 2008 at age 82, developed COPD later in life, about 10 years after she finally quit smoking, a habit she had for about 50 years.
My father, who died on 2013 at the age of 90, never smoked in his life.
Smoking was very common among people in their generation, and in the 1950’s and 1960’s, about half of Americans were smokers.
I once asked my dad, who was a life-long athlete, why he never smoked, especially given how popular cigarettes were back when he was growing up in the 1930’s and 1940’s. He told me that even back then, he could see that the guys who smoked couldn’t run as fast, or for as long, or otherwise keep up with those who didn’t smoke, when playing sports like baseball and basketball.
He said he didn’t need any studies to confirm that, or to prove the validity of things like a “smoker’s cough,” or the tell-tale shortness of breath that usually builds up over time.
Of course, research later validated what my dad (and many others) just “knew.”
Now, consider a different example: Back in the early 1990’s my mom had been diagnosed with diverticulitis, and at the time, was told that certain foods, like nuts and seeds, can cause a recurrence of the condition, and should be avoided.
Fast-forward a few decades, and, as luck (and genetics) would have it, I wound up in the ER with the same thing. As I talked to the doctor that treated me, and told him about my mom, I also indicated that I knew, through her, to stay away from nuts and seeds (2 things that I like a lot).
Imagine my surprise when he told me that wasn’t actually true. Later on, I did a little of my own investigation and learned that that avoiding nuts and seeds is actually not necessary, and that modern studies have confirmed that there is no evidence such foods cause or otherwise exacerbate diverticulitis.
Here, research showed that that what is “common knowledge” was, in fact, wrong.
Now, let’s circle back to DUI cases: It has long been “known,” and – in this case – multiple studies have confirmed that, as a group, DUI drivers have a statistically higher rate of drinking problems than the population at large.
Here’s the easiest way to explain this:
Imagine that you, the reader, are instructed to go out and get a random sample of 1000 people. You are told it doesn’t matter how you do it – you can get 20 from each of the 50 states, or 500 from the east coast and 500 from the west coast, or you can pick 1000 people out of a sporting event, or a concert, or whatever.
The ONLY requirement you must observe for assembling this group is that you pick people at random, and that they be of roughly normal intelligence, meaning intelligent enough to either have or to be able to get a driver’s license.
These people will be called “Group A.”
Next, you are told to do the same thing all over again – to pick out another 1000 people at random who are of roughly normal intelligence (again, meaning intelligent enough to either have or to be able to get a driver’s license), but that the folks in this group must also either be currently going through or have previously had at least 1 DUI conviction.
These people will be called “Group B.”
Now, if you were to screen both of these groups, and no matter what kind of testing instrument (meaning substance use evaluation) was used, it will always pan out that Group B has a statistically higher rate of alcohol problems than Group A.
The upshot of this is that anyone charged with a 1st offense DUI is more likely to have, or at least have the potential to develop some kind of problematic relationship to alcohol. And to be clear, a “problematic relationship to alcohol” does NOT mean that one is any kind of “alcoholic.”
Thus, any person walking into court for a 1st offense DUI does so as a full-fledged member of a higher risk group.
Not surprisingly, the correlation of DUI’s to drinking problems shoots up like a rocket in 2nd and 3rd offense cases.
This is significant, and it ties into the fact that, in Michigan, anyone convicted of a 2nd offense OWI (Operating While Intoxicated, the actual term for what every calls “DUI”) within 7 years of his or her 1st, or a 3rd offense DUI within 10 years of his or her 1st, is automatically categorized as a “habitual alcohol offender,” and is legally presumed to have a drinking problem.
As a consequence of the habitual alcohol offender designation and the presumption that all such people have some kind of drinking problem, the law requires that all 2nd and 3rd time DUI offenders be sentenced to some kind of counseling or treatment.
Beyond the legal implications of the habitual offender categorization and the presumption it creates, the court system (and everyone in it) simply takes it as a given that anyone convicted of a 2nd or 3rd offense DUI has a drinking problem.
The law, for its part, still requires the revocation of driving privileges for every 2nd and 3rd time offender, and also requires every one of them to undergo a legally required alcohol screening, even though that same law already concludes that he or she has a drinking problem.
At some point, every 1st time DUI offender will stand before the Judge to be sentenced, and promise that he or she will never drive drunk again.
Right then and there, every last one them will really mean it.
The problem, however, is that every Judge knows that every 2nd and 3rd time DUI offender has made (and broken) that very same promise before, and this far only goes to further reinforce the idea that, as a group, DUI drivers actually do have a higher rate of drinking problems than the population at-large.
This is all part of what is called the “alcohol bias,” something that is inherent (meaning “built into”) the court system. This subject is so important that I have created an entire “Alcohol Bias” topic area on this blog, and I would strongly suggest that the reader explore some of the articles within it.
What’s important to our discussion here is that the alcohol bias, supported in large part by the underlying reality that DUI drivers do have a measurably higher rate of drinking problems than non-DUI drivers, is really key to understanding why the court system is so concerned about a person’s relationship to alcohol in the context of a pending DUI case.
That said, it is also a fact that most 1st offense DUI offenders do NOT have a problem with drinking.
Okay, so that explains things a bit, but that also raises an important question: Is there anything we can actually do with this information?
As it turns out, yes, there is.
It is crucial to begin here, at the very outset of a DUI case, with the alcohol bias and its role in explaining why the court seems so concerned about a person’s drinking.
This will help a person understand why courts imposes a “no-drinking” order as condition of bond in every case, while a person waits for his or her case to be wrapped up, and why the court will continue that “no drinking” order as a term of probation thereafter.
This also makes it easier to understand why, in addition to issuing a “no drinking” order, the courts will require a person to provide breath and/or urine samples at periodic intervals to ensure his or her compliance with that condition.
It’s also important to remember that, as part of the DUI process every person is legally required to be “screened,” and must complete some kind of alcohol assessment. The assessment is a written “test,” and the answer to each question on it has a point value.
The total number of those points is tallied up at the end, and then compared to a scoring key.
Depending on the test used (technically called a “screening instrument”) in any given case, the scoring key will rank the number of points in a way to determine whether a person appears to either have an alcohol problem (and if so, how bad it is), or whether he or she seems to be at risk for one to develop.
Generally speaking, the higher the number of points, the worse things are. Usually, less points are better.
That’s easy enough, right?
Here’s the kicker: No matter what test (“screening instrument”) is used, there will be questions that specifically ask if a person has ever been arrested for an alcohol-related traffic offense (and, of course, that’s precisely why anyone going through a DUI will be answering such questions in the first place) or ever has ever had any other legal issues arising from, related to, or that occurred after drinking.
Therefore, even a 1st offender will automatically rack up some points in this area, and will, unfortunately, start out with a handicap.
A person needs to be thoroughly prepared to undergo the alcohol assessment because this screening is part of a larger process called a PSI (“Pre-Sentence Investigation”).
In addition to completing the substance use questionnaire, a person will also fill out other paperwork, giving details about his or her life and upbringing, education, alcohol and drug use, employment and marital history, as well as his or her version of the case.
Thereafter, he or she will meet with a probation officer for an interview. The probation officer will then take all of this information, including the person’s “score” on the assessment test, and any and everything else he or she feels is relevant, and use it to make a written sentencing recommendation to the Judge.
In the real world, this sentencing recommendation is always followed very closely (if not to the very letter) by every Judge, in every DUI case. In that way, the sentencing recommendation is really a blueprint for what is going to happen to a person.
This is where something CAN be done to make things better.
Specifically, like just about everything else in life, the key to success lies in the preparation, and, as noted above, the client needs to be prepared, not only for the alcohol assessment test, but also the interview with the probation officer and the rest of the PSI process.
Remember, success in a DUI case is best measured by what does NOT happen to you.
Given that a good (meaning lenient) recommendation will result in good (meaning lenient) sentence, and a tougher recommendation is the precursor to a tougher sentence, it’s easy to see why our efforts, as Michigan DUI lawyers, must be directed here.
Underlying all of this, though, is the court system’s interest in a person’s drinking, and that is largely a natural consequence of the inherent alcohol bias.
For everything we’ve covered here (and we’ve really only scratched the surface), it should be clear that when a person gets charged with a DUI, and no matter how true or not it is, simply insisting that he or she isn’t a big drinker, or doesn’t drink that much (or that often), isn’t going to help make things better.
This is why the court’s interest in a person’s drinking is so important, and that’s where my team and I, as Michigan DUI lawyers, come in.
If you are facing a DUI and looking for a lawyer, then be a wise consumer and read around. Pay attention to how different lawyers explain the DUI process, and how they explain their various approaches to it.
When you’ve done enough of that, start checking around. You can learn a lot by actually talking to a live person.
If your case is pending in the Greater-Detroit area (meaning anywhere in Wayne, Oakland, Macomb, Lapeer, Livingston, St. Clair or Washtenaw County), then give us a ring, as well. All of our consultations are free, confidential, and, best of all, done over the phone, right when you call.
My team and I are very friendly people who will be glad to answer your questions, explain things, and even compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700, or 566-465-1980.