Michigan Criminal Defense Lawyer Blog
In my various DUI articles on this blog, as well as the DUI section of my website, I break down the Michigan DUI process and examine it in what is often painstaking, if not painful, detail. No matter how you analyze it, however, the most important part of any DUI case is what actually happens to you, meaning the sentence that is imposed upon you. In virtually every 1st offense DUI case and in most 2nd offense DUI cases, keeping you out of jail isn’t really difficult for me to manage (in truth, staying out of jail is just about automatic in 1st offense cases). A far greater risk, however, is that you will be perceived by the court as having, or being at risk to develop a problem with alcohol. In fact, it is pretty much a given that, in any 2nd offense DUI, your involvement with drinking is seen as problematic and risky because, whatever else you can say about it, you’re back again. To a Judge (and, really to society in general), a 2nd offense Operating While Intoxicated charge is a red flag that you have a troubled relationship to alcohol. This topic is so important that even though I took it up somewhat recently, we’ll look at it again.
What winds up happening to you in either a 1st or 2nd offense drinking and driving case is, more than anything else, a result of whether or not the Judge believes you have, or are even at risk to develop, a problem with drinking. Lawyers can talk forever about all kinds of things like breath evidence and probable cause, but at the end of the day, your DUI experience will be most influenced by the court’s conclusion you either do or don’t have an alcohol problem, or are at increased risk for one. Beyond these simple conclusions, however, the real key to the court’s perception of whether or not you have a drinking problem, or have an increased risk to develop one, is how you do (meaning how you score) on the legally required alcohol assessment test. This is a written test you take that is “scored,” and that score is used to “fix” where you supposedly place on the continuum of an alcohol use disorder, from no problem to serious problem, or anywhere in-between. Like so many things, however, we tend to overlook the basic in the mistaken search for the more complicated. Here, as always, simpler is better. This is an absolute and simple truth, but because it doesn’t sound glamorous, it doesn’t sell as well, making it the most overlooked (and most costly thing to overlook) aspect of properly defending a DUI case.
This is a fact you can take to the bank: What happens to you in any DUI case that goes through the court system will have more to do with your score on the alcohol screening test than any other single factor, and usually more than all the other factors of your case combined. And since that’s the way it is, then it means the single most important thing you can do is to perform well on that screening test. This is where I come in, and this is where my specialized training can directly help you. Because of my investment of time and money, I have a thorough knowledge of the diagnostic processes used to determine if a person has, or is at risk to develop an alcohol problem. In the real world, the people in the court system likely have little or no real understanding of the diagnostic criteria that underlie the screening test, other than there is an answer key to tally up the point value of your responses and arrive at your “score,” which is then used to determine where on the continuum of alcohol problems you supposedly place. Because of my formal education, I know exactly how this process works, the concepts involved, and how make sure you understand how to do as well upon this evaluation as humanly possible…
In just a few minutes, I can make sure anyone knows how to avoid the most common pitfalls in the context of an alcohol-screening test, but I don’t merely spend a “few minutes” with my DUI clients. My first meeting with a new client takes at least 2 hours, and a good part of that is dedicated to introducing my client to the general concepts involved in doing well on his or her screening. We’ll meet again later, so that the ideas that were introduced earlier become reinforced right before you undergo that evaluation.
This is a small investment of time and effort on your part that gives rise to a huge payoff. In a 2nd offense DUI case, for example, the law presumes that the person has an alcohol problem. Counseling must be ordered. Even if you are the President of the United States (POTUS), if you go before a Michigan Judge for a 2nd DUI within 7 years, you will be sent to some kind of counseling. It is against the law for the Judge not do this. And since you’re not the POTUS, the Judge will likely have already concluded, even before he or she knows your name or gender, that you have a drinking problem just because you’re back for a 2nd offense. Now, the question becomes whether that problem is significant, or if we can show that it is, more than anything else, a question of bad judgment. The payoff is the difference between a relatively quick and inexpensive course of alcohol education or a longer stint in some kind of outpatient rehab program. In this article, we’ll leave out any consideration of sobriety court, because that is only an option in some places, but not others.
Of course, I’m here to help anyone who needs it get into the right kind of treatment, and you won’t find a lawyer more familiar with this than me. Nothing makes me feel better than helping someone take the first steps to sobriety. Yet I also know that sobriety only comes when a person him or herself looks for it. You can’t force someone, even if he or she has a serious alcohol problem, to recognize it, or be ready to do something about it. Here is where the court system makes the same mistake over and over again. I’m not suggesting that we just let drunk drivers “get away with it,” but forcing someone into counseling or treatment before he or she is ready is a waste of time and money. Another common tactic is to require someone to go to AA. While AA is a wonderful program, the feeling of safety and community is diluted when the meeting room tables are populated with folks who don’t want to be there. Instead of forcing someone into “rehab,” we can probably be more productive if we spend the time to help people evaluate themselves and perhaps see that their relationship to drinking is problematic, or at least risky enough to see that, well, they’re back in the court system again. This may not, in itself, be the “a-ha” moment, but it can plant the seed for that moment to come later.
The plain fact is no one wants to get forced into anything he or she doesn’t have to do. In my most intimate conversations with my clients, I will explain that even if he or she is struggling with drinking, it’s far better to deal with that outside the supervision of the court. We want to keep the court out of your life as much as possible. This means that if Wendy the wine drinker suspects that her drinking has gotten a little out of hand, she should talk to someone about that privately. Let’s be completely honest here, because that’s lacking in the context of DUI cases and courts and all: If Wendy admits, in court, that she needs help with her drinking, the Judge will be happy to send her to counseling or treatment. That’s the easy part. Wendy’s attendance at counseling, however, will be monitored. That’s never good. Say that Wendy has a bad day and has a slip and has a glass of wine. If she tells her counselor, he or she will have to report that to the court, which will get poor Wendy in all kinds of trouble.
Now, if you ask anyone who knows how to even spell “recovery,” he or she will surely tell you that it’s a process. It’s not something that’s simply turned on like a light switch. People have slips, especially early on. Counselors hate having to “rat” out a client, but they have no choice when the client comes to them in a court/probation setting. The problem is that once Wendy admits to her counselor that she had a slip, and the counselor reports that, effectively getting Wendy in trouble for violating, Wendy will NEVER be honest with her counselor again, at least about drinking. This duty to report destroys the therapeutic alliance, sometimes also called the therapeutic relationship. If Wendy was in counseling on her own, outside of the court’s jurisdiction, then admitting to her counselor that she had a slip wouldn’t be a big deal. It would, if anything, be a learning moment. If there was ever an application to the idea that it’s good to keep government out of your life, it’s right here. In a DUI case, we want to keep the court’s nose out of your business as much as possible, no matter what the fact are.
I believe that it’s my job to help my client on both the legal and clinical fronts. First and foremost, I am a DUI lawyer. It is in my DNA to help my client avoid consequences. This goes well beyond just the legal side of things, however, because as we’ve seen, most of the consequences that will be imposed result from a “quasi-clinical assessment” (the written alcohol screening test). If a DUI lawyer ends his or her formal education in law school, then he or she cannot really help the client with this clinical side of things (meaning, for purposes of this article, the alcohol assessment test) very much. In my case, I undertook and completed a formal program of matriculation at the post-graduate level (meaning one must already have an advanced degree like a Master’s or Doctorate) in addiction studies. I did this with the sole intention of being a better DUI and driver’s license restoration lawyer, and I firmly believe that I am.
At the end of the day, it is the DUI lawyer’s job to make things better for the client to the greatest extent possible. Sure, we’d all like to be lucky enough to have the case where the police bungled the evidence so bad that the Judge will throw everything out of court, but that doesn’t happen often, and chasing that pipe dream will cost a lot of money and leave you worse off in the end if you don’t get lucky. In the real world, success in a DUI case is measured by what does not happen to you, so that “making things better” for the client means avoiding consequences. Since the most significant potential consequence is something like intense counseling or outpatient treatment, and those things follow from how you do on the alcohol assessment test, doing as well as possible on it is the most important task at hand. More important, it is a task that can be managed.
I put my heart and soul into this. I am in court, handling DUI cases, almost every day of the week. I see the better results my clients achieve for the effort we invest. If you’re facing a DUI, make the investment in yourself to assure the best outcome possible in your case. I have always been the kind of lawyer that encourages everyone to do his or her homework. You have to be a good consumer. Read what other lawyer have written, and then pick up the phone and call around. When you call my office, you’ll get answers to your questions as soon as the phone is answered. We’re here to help, and can be reached Monday through Friday, from 8:30 am to 5 pm, at 586-465-1980.