Michigan Criminal Defense Lawyer Blog
As a Michigan DUI Lawyer, I am in Court every day, often multiple times each day, handling DUI cases. Within the more than 90 Drunk Driving articles on this blog, I examine and explain the various aspects of the Michigan DUI process, and seldom waste space trumpeting my own successes. A recent case, however, gives me an opportunity to provide a very specific example of how some of the rather specialized and unique knowledge I possess (which I believe sets me apart from the general herd of other “DUI Lawyers”) was used to produce a much better, real-life result in Court than would have been the case had a Lawyer other than me been standing next to my Client. The cold, hard truth is that if you want better results, you’ll have to step up and hire better, and that applies to everything from Doctors and Lawyers to Carpenters and Painters.
Here’s the basic setup to this story: I study alcohol problems and alcoholism. As part of that, I have an extensive background in the methods used to diagnose an alcohol problem. The established criteria for determining if someone is either an alcohol abuser or is alcohol dependent is set forth in what is known as the Diagnostic and Statistical Manual of Mental Disorders. Most commonly referred to as the DSM, the current edition is the fourth iteration, and is usually cited as the DSM-IV. I know this stuff. I study it, and use it everyday. Beyond just being a DUI Lawyer, I am a full time Michigan Driver’s License Restoration Lawyer, and in that part of my Practice, the nuances of whether a Client is diagnosed as an alcohol abuser, or as alcohol dependent, is critical to my day-to-day work.
While this is certainly not typical for a Lawyer, it has proven to be immensely helpful to me, and it sure helps my Clients.
The Client in the case at hand was facing a DUI charge in a local, Detroit-area Court. Unfortunately, he came into Police contact because he had lost control of his car while driving on the freeway, and had rolled his car over. He had to be pulled out of an upside-down car while oncoming traffic was diverted. Accordingly, there wasn’t much to contest about the reason for the initial Police contact, considering that the Police are rather obligated to stop and help out when a car is upside down and blocking traffic on the freeway.
Nor was there much else to fight over. My Client, while (thankfully) very cooperative, had obviously been drinking (he was double the legal limit, as it turned out) and consented to a blood test on the way to the hospital to get stitched up. With no real evidentiary issues to challenge, I worked out a deal to make sure there would be no Jail, and then prepared my Client for the all-important alcohol assessment test that is part and parcel of any DUI case that is not dismissed or “knocked out” somehow.
After we had worked out a deal, but before the Sentencing date, as the Law requires, my Client appeared at the Court’s Probation Department for his Pre-Sentence Investigation (PSI) interview and to take the mandatory alcohol assessment test. On the day we returned to Court for Sentencing, we reviewed the Pre-Sentence Report completed by the Probation Officer and forwarded to the Judge. I should point out that each of these things, from the return date to Court for Sentencing, to the writing of a Pre-Sentence Report, to the fact that it is forwarded to the Judge, is required by Law in a DUI case, so anyone dealing with a Michigan DUI charge, no matter what Court their case is in, will go through this.
The most important part of all of this in any DUI case (and something I have said again and again) is how well, or poorly the person does on the alcohol assessment test. These tests are numerically scored, and that score is supposed to determine if a person has an alcohol problem or not. There are 3 conclusions that can be reached based upon a person’s test results: That they DO NOT have an alcohol problem, that they are an alcohol abuser, or that they are alcohol dependent.
Life being what it is, the tests administered by Probation Officers are not the best tests that can be given. Most of them can be self-administered. A fully trained and accredited Substance Abuse Evaluation Counselor, by contrast, can give a much better test; one that requires some interpretation, and doesn’t just give a score for a result. This is really no different than the kind of home drug test parents give their kids, where a dipstick simply turns a certain color for positive. A real lab test is, of course, much more accurate and descriptive.
In the case we’re discussing, my Client took a test called the “NEEDS” assessment. I could write a library full of articles about the different assessment tests that are used to screen for an alcohol problem. Of all of them, the NEEDS is one of my least favorites. I have only seen it used by a few Probation Officers, and never by an actual Substance Abuse Counselor. My longstanding doubts about this test were later confirmed by what took place in Court.
On the date of Sentencing, after checking in with the Court Clerk, I was provided with a copy of the PSI (Pre-Sentence Investigation) Report for review. This is another thing that’s required by Law: Before a person goes in front of the Judge to be Sentenced, they must review this Report, which is really the product (and whole point) of the Pre-Sentence Investigation (PSI). The focus of the PSI Report is the Recommendation it makes. Then, once in front of the Judge, the person and their Lawyer are asked if they have read the Report and if it is accurate.
My Client and I read the Report, and I found huge problems. After reiterating my Client’s reports about how often he drank, and other relevant factors about his drinking, the Probation Officer concluded that my Client’s responses on the NEEDS test indicated he had an alcohol abuse diagnosis. Then, she noted that, under the ASAM (American Society of Addiction Medicine) criteria for Patient placement, my Client scored a “0,” meaning he had no need of any placement or other education or intervention services, for that matter.
The Probation Officer probably didn’t expect that my Client’s Lawyer not only knew what this meant, but had an excellent working knowledge of the DSM-IV criteria for alcohol abuse and dependence, which is what the NEEDS test was supposed to be measuring for in the first place. My Client, nice guy that he is, just murmured a general disagreement with the conclusion that he was an alcohol abuser. Beyond thinking something like “that’s not right,” or “that’s bull$**t,” he, like anyone else in his position, couldn’t point out how the DSM-IV criteria were specifically NOT met.
But I could. And I did.
When we got in front the Judge, I told him that the PSI was seriously flawed. I then began to point out how the Probation Officer had very clearly erred in somehow “scoring” that test in such a way as to find that my Client was an alcohol abuser. I know the DSM-IV criteria rather well, but I had pulled them up on my iPhone, as well, ready to prove my point rather than just make it.
I explained to the Judge that something was wrong, that my Client very clearly didn’t meet the established diagnostic criteria for alcohol abuse, and I began to give him specifics. One of the contradictions I pointed out was that the lowest level of Patient placement, according the American Society of Addiction Medicine was a 0.5, and that was only for the earliest stages of a drinking problem, specifically called early intervention. There is nothing lower than 0.5. There is no “0” except as to indicate there is no problem, no need for any intervention or placement…no anything!
I got about halfway through what I was ready to point out as wrong, and the Judge politely stopped me. He had heard enough. He agreed with me. To be candid about it, I’m sure he knew that I knew way more about the NEEDS test and how this result was flawed than the Probation Officer who wrote the PSI ever would.
I then turned to the Recommendation that my Client enroll in outpatient treatment. I pointed out the absurdity of sending a person without an alcohol problem to a clinic to get help for an alcohol problem they don’t have. He agreed. He scratched that from the Recommendation.
Next, I argued that the term of Probation that had been recommended (2 years) was excessive for a first offender who had been mistakenly “diagnosed” with an alcohol problem. The Judge agreed with that, as well, and reduced the term considerably.
I counted this as a success, and so did my Client. He walked out of Court a heck of a lot better off than he would have without me. And that brings me to the point of this article. To me, being a DUI Lawyer through and through means not only knowing the Law and being able to challenge evidence and have a case “knocked out,” it means understanding all the little things that matter in a case that isn’t going to be dismissed for some reason or other. In DUI cases, it means understanding how an alcohol problem develops, how it’s diagnosed, and how it’s treated. I use this knowledge every day to make sure my Clients are prepared to take an alcohol assessment test and score as low as possible upon it.
Any DUI case that is strong enough to go through the Court system is going to involve an alcohol assessment, and the results of that assessment, more than any other factor, dictate what will actually happen to a person. I bring an unparalleled background and understanding of the development, progression, assessment, diagnosis and treatment of alcohol issues to the table. This knowledge is key in being able to prepare my Client to undergo the alcohol assessment, and then being able to critically examine the results. Had my Client had another Lawyer with him, the best they’d have been able to say is that they don’t think he has an alcohol problem. That wouldn’t have gone very far with the Judge.
Instead, I did what I do best, and, as a result, I produced the best possible results for my Client. Sometimes, doing the best means being the best, especially when the situation demands it.