How you get on Probation for a DUI

In the prior article about Probation in a Michigan DUI case, we outlined how the Judge will require a person to do certain things, and not do others. Chief amongst the big no-no’s is using alcohol or drugs. We noted that, as easy as that sounds, lots of people trip up and wind up testing positive while on probation. In this article, I want to look at how the various conditions of probation wind up being ordered in the first place. This subject is rather more involved, so this article will be noticeably longer.

MDOC 1.2.jpgThe conditions of probation a person must fulfill don’t just pop into a Judge’s head out of thin air. In all Michigan DUI cases, the law requires that that a person undergoes a mandatory alcohol assessment. This means you’ll take a written test, sometimes also called a “substance abuse evaluation” or “alcohol screening.” At least in the Detroit area (Macomb, Oakland and Wayne Counties), where I regularly practice, as well as Lapeer, Livingston and St. Clair Counties, where I am often enough called upon to handle DUI cases, the alcohol assessment is handled exclusively by the court’s probation department.

The alcohol assessment is part of a larger overall step in the DUI process called a “PSI,” which stands for “pre-sentence investigation.” The mandate that a person completes an alcohol assessment also requires that the results of that assessment be sent to the Judge. The assessment, then, is really a “test” to determine if a person has, or is at risk to develop a drinking problem. This is huge. In fact, in a DUI case, this is just about everything, and certainly the single most important thing that will determine what does and does not happen to you.

The way it works is this: You take the written assessment (test), and it is scored. In addition, you will be interviewed by a probation officer, who will gather information about you, including any past record (especially DUI’s) you have, your upbringing and what you’re doing in life right now (gainfully employed or unemployed). All of this, including (and especially) your alcohol assessment screening results are put together in a written report and recommendation that is provided to the Judge for his or her review and use at your sentencing. The law requires that you review this report with your lawyer prior to going before the Judge for sentencing.

Again, this is huge. The pre-sentence report and recommendation is pretty much the blueprint for what will happen to you. This is where anyone who has had a prior DUI knows exactly what I’m talking about, and further knows that this is exactly how things work…

If you are screened by probation and found to be at risk of developing a drinking problem, it will be recommended that you undergo counseling. There isn’t a Judge in the world, much less in Michigan, who will disregard this type of recommendation and just skip sending you to counseling. As a result, it is critical that you understand the whole alcohol and probation screening process and how to avoid being perceived as having, or even being at risk to develop, a drinking problem. And don’t think for even a second that there isn’t a strong bias in the whole judicial system that presumes most people with a DUI have a drinking problem, or are at increased risk to develop one. There is, and it’s only getting stronger with each passing year. When it comes to having the tables turned on you, and essentially being called upon to show that you don’t have any issue with alcohol, you’re going to need a lot more than a simple denial, or, worse yet, a lawyer whose best argument on your behalf is is to simply say that you don’t have a problem.

This is where I come in. Being a DUI lawyer is all well and fine, but it falls a million miles short of having the proper qualifications and training to determine what is or isn’t an alcohol problem, much less argue that your client doesn’t have one.

I have those qualifications.

Beyond my law degree, I bring actual, ongoing and formal University, post-graduate level education in addiction studies to the courtroom. I not only speak the language of clinicians; I am educated in and intimately familiar with the concepts involved in diagnosing (and treating) alcohol use disorders. When I walk into a courtroom, I am the foremost expert on the subject of what does and does not constitute a drinking problem, and the panorama of treatment modalities available to address it. This translates directly into an unmatched ability to protect you from a system that’s best choice to determine if you have or are at risk to develop a drinking problem is a probation officer.

This extensive, special (and expensive) formal education separates me from the herd of other lawyers doing DUI cases. It is important to understand how the court, meaning the judicial system, perceives things, but it is also important to temper that conceptualization with a strong dose of clinical reality. When your future is at stake, you need a lot more than fear and over-protection and the political clout of MADD influencing what happens to you. As a DUI lawyer with formal education in substance abuse issues, I can stand up and point out the difference between what people tend to “think” and what has (and has not) been validated by empirical studies.

Here’s an example that plays out every day, in just about every court; In fact, I have written at least a couple of articles explaining how a person’s BAC (breath or blood alcohol test score) is an important factor in how they will be seen, and, indeed, treated, by the court. It only makes sense that the higher a person’s BAC, and particularly if a person has a “High BAC” above .17 (or even above .20), it seems that he or she is a big, or at least bigger drinker, right? The usual thinking is that kind of BAC almost certainly indicates a tolerance to alcohol. The idea is that the occasional or non-drinker could never ramp up such a high BAC.

Yet there is absolutely no diagnostic criteria used in a clinical setting to determine if a person has or does not have an alcohol problem that relies upon BAC information. None; look for yourself. Despite this, the Michigan legislature created a new High-BAC drunk driving crime a few years ago (sometimes called “superdrunk”) that makes a DUI with a BAC score of .17 or higher a more severe crime than a simple OWI (DUI) charge. From a clinical assessment point of view, BAC on any particular occasion is not a factor is reaching a diagnosis. Yet the probation officer will be all over that like a vegetarian will rip on McDonalds.

It would be easy for me, as a DUI lawyer, to just go along with the flow, and not test the Judge’s patience and just agree that, yes indeed, a higher BAC score means a person is more likely to have a tolerance. It is also easy, although rather moronic, to stand up and tell the Judge that if he or she really thinks a high BAC signals a drinking problem he or she is dead wrong. Instead, my job is to advocate with the skill of a lawyer and the knowledge of a clinician, and help the Judge to understand that while a higher BAC score is certainly not meaningless, it no more implies a drinking problem in any particular person than being poor makes him or her a greater risk to steal. My unique field of study allows me to argue this using what matters most in court; evidence.

Now, let’s circle back to probation. The probation officer administering the alcohol assessment almost certainly lacks any formal clinical training or certification. There are a few exceptions to this, but those are few and far between, and those exceptions only work with a DUI population, and not in any rehabilitative capacity. Accordingly, virtually every probation officer is limited to administering and scoring the kind of over-the-counter alcohol screening test you find online. In other words, probation departments use a screening instrument that is to actual clinical assessment and diagnosis what a “dipstick” urine test is to a formal urine screen analyzed in a laboratory. Only a credentialed clinician can administer something like the SASSI-3 instrument (and that person has to be trained and certified by the SASSI institute), for example. The SASSI-3 is a highly regarded assessment tool, but it can only be used by treatment professionals. The kind of test you’ll take at the probation department had to be the kind that can be handed out and then scored by anyone, including your local bartender (and that’s not a knock on bartenders, either).

Now, if you come into this situation with anything except an extremely low BAC score, like .08 or .09, do you really expect a non-clinician probation officer, administering a downloadable, “over-the-counter” screening instrument of questionable reliability to buck the political headwinds favoring MADD and the trend toward tougher drunk driving sanctions, more counseling, more testing and more probation, and just not recommend some kind of classes or counseling? And do you think that a probation officer has ever “underdone” it, meaning been too easy as to what he or she recommends, as opposed to having overdone it, and recommending too much? You can probably count on two fingers the times a probation officer has ever made too lenient a recommendation…

I think I have made clear how utterly critical the alcohol screening and interview with the probation department is to the outcome of a DU case, especially because the result of that screening and interview is a written sentencing recommendation that must be provided to the Judge and considered by him or her when someone is sentenced. You must be carefully prepared for the alcohol assessment test, and not just wished “good luck” with it. In my office, we will, quite literally, spend hours making sure that you know what to expect on that test, and exactly how to respond to whichever instrument is put in front of you.

Some people just shrug this off and think that the “better” answers on any alcohol screening assessment are found by using common sense. Here’s a quick illustration of why that’s mistaken. Imagine in your own DUI case being asked by the probation officer something like, “How drunk were you”? How would you respond? Do you think your BAC score should play any role in the way you answer?

Most people would respond by saying something like “I didn’t think I was that bad.” If you take the time to brush your teeth and comb your hair, then you have some concern with how you present yourself. No one wants to look bad. We all want to create a favorable impression, especially when it matters. As a result, no one is going to answer the “How drunk were you?” question by saying “Man, I was drunk as a skunk, and I couldn’t have cared less who or what I ran over.”

The problem with the “I didn’t think I was that bad” answer is that, no matter what your BAC score, you are implying that either you have a tolerance to alcohol and didn’t feel intoxicated while being over the legal limit, or you are BS-ing, and whatever else you say is questionable, as well.

The best answer would be something like this: “I knew I was intoxicated, but I just figured I could make it home without getting caught.” With this answer, you do not give any indication that you have developed a tolerance to alcohol, nor do sound anything less than credible. Believe me, whether your BAC was .09, .12, .15 or .22, the probation officer has already figured you were drunk. The wrong kind of response sounds like either denial or an admission, however tacit, of a growing tolerance to alcohol.

To say that there is a lot more to this is an understatement. Each case is unique, and knowing how to present things to the probation department (including whether or not you get into some kind of counseling or not, or even disclose that or not) has to be decided on a case-by-case basis. Again, being a DUI lawyer is all well and fine, and a thorough understanding of the how things work in court is a necessary prerequisite to have any success at making things better, but it’s my clinical training that allows me to navigate the issues that even the probation officer won’t fully grasp in most cases. Again, when I accept a DUI case, I need to be the foremost expert on alcohol issues in the courtroom. As I have noted before, success in a DUI case is measured more by what does not happen to you than anything else, and being the guy that spare you from any classes, counseling or rehab is key.

The end result of your alcohol assessment and your interview with the probation officer is his or her legally required, written sentencing recommendation that’s provided to the Judge. As I pointed out earlier, anyone who has ever had a Michigan DUI before knows, from first-hand experience, that the sentencing recommendation is like a blueprint, or script, for what’s going to happen. In the real world, most Judges follow the sentencing recommendation very closely. There are some Judges who basically “rubber stamp” them so frequently that lawyers complain aloud about it. Most Judges can be persuaded to deviate here or there from what the probation department suggests, but it’s not realistic to think that any Judge will simply disregard, in wholesale fashion, the terms recommended by the probation officer.

For everything we’ve covered in the last 2 installments, we still haven’t really taken a look at the specific kinds of things you can expect to have to do while on probation. I’ll save that for the next installment. Fortunately, a review of what actually can happen to you will be a lot easier to cover than our current subject. When we get into that topic, we’ll see how one of the most important determinants of how things will actually turn out in your case is the location of the court where your DUI case is pending. Macomb, Oakland and Wayne Counties might share common borders, but they are literally worlds different when it comes to how the Judges within their various courts handle DUI offenders.

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