Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began examining the PSI process and the role of the Alcohol Assessment Test in DUI cases. We’ll continue with a more detailed discussion of the Alcohol Assessment Test and the role of the Probation Officer is determining what happens to a person facing a DUI.
People often ask if doing well on an Alcohol Assessment Test is more a matter of common-sense than anything else. To a degree, it is, but there’s way more to it than that. From a clinical point of view, a standardized Alcohol Assessment Test looks for and measures 5 traits, or markers, of an alcohol problem. If a person is NOT thoroughly familiar with these 5 “markers,” and cannot explain them and their implications in detail, then they are just going though the Assessment blindly. Again, it takes hours to go over this stuff, but the 5 “traits” or “markers” of an alcohol problem are:
- Family History of Alcoholism,
- Instances of Social Comment,
- History of Blackouts,
- Instances of Social Conflict, and
- Increasing Effects Threshold.
Preparing the Client for the Assessment Test, and how that Test will measure these things, is absolutely paramount to minimizing the consequences they will endure as a result of a DUI.
This means that if a person is not properly prepared for an Alcohol Assessment Test, and they’ll go in to Probation and do, at best, an “okay” job on the Alcohol Assessment Test and in the PSI Interview.
As a result, they’ll wind up with an Assessment Report and Recommendation that looks far worse than it would have if they had been properly prepared for the Alcohol Assessment and PSI Interview. A typical example would be something like this:
M.A.S.T. Test score: 4
The Defendant has a score that indicates a potential for alcohol abuse. Given the Defendant’s lack of full realization of the potential negative consequences associated with their drinking behavior, including legal implications and putting their own and others lives, safety and well-being at risk, coupled with their elevated breath test result (one and a half times the legal limit at .12), it appears the Defendant would benefit from alcohol education classes and should be tested regularly to insure abstinence.
In most cases, this kind of result could have easily been avoided if the person had been shown how to NOT step on certain “landmines” in the interviewing and testing process.
What makes this so frustrating is that people often pass right over the “better” answer to certain questions, because that “better” answer is often counter-intuitive.
Let’s look at another example:
One of the most subtle questions asked by the interviewing Probation Officer of any DUI Defendant is something like “How drunk were you?” Or “Did you feel okay to drive?”
At first blush, almost every one of us, if asked such a question, would not want to create a negative impression. After all, we groom ourselves, and we otherwise try to put our best foot forward. For most people, the first thought is to NOT give the impression that they would knowingly and willingly drive drunk and put other people at risk. Very often, the response given to such a question is some version of “I didn’t think I was that bad,” or “I’d never drive if I thought I was so drunk I might hurt someone.”
The problem is, an answer like that only does 1 of 2 things:
- If true, it verifies the person has developed a tolerance to alcohol. It does not matter what a person’s BAC was. It could have been a .08, .10, .12, .15, or a .20. The idea is that if a person’s BAC is over the legal limit, then they are considered legally drunk. Saying you weren’t only makes things MUCH WORSE.
- If not true, then it means that any and everything else the person says is not trustworthy, and they are not being completely honest.
Instead, it is far better to say something like “I had a buzz. I knew I was buzzed, but my judgment was clouded, and I figured I could just make it home without getting caught.” All the person has admitted is what has already been determined about them; that they were driving over the limit. I never recommend anyone say they were so drunk they were seeing double, or hallucinating. However, to deny having been affected by the alcohol will ALWAYS work against them.
That’s just one example of many. The whole PSI process is really a field of “landmines” that a person has to learn how to navigate. In my Office, the most important job I have is helping the Client get through this process unscathed, with as few legal consequences as possible.
Beyond the PSI process, it is important to understand the perspective and experience of the Probation Officer who will be conducting the interview. Again, even the simplest overview of how to deal with a Probation Officer is far too detailed to be boiled down into a blog article, but there is a definite way to approach this whole process. Anyone who has ever been on Probation before knows that Probation Officers have a unique way of dealing with things. That’s putting it nicely.
A person must understand, however, that Probation Officers are, at their core, compliance Officers. They are under Orders to make sure the people whom they supervise follow the Court’s Orders. And they have heard every possible excuse in the book for why that didn’t happen.
Remember, pretty much every first offender who walks into a Probation Office tells the Officer that this is the worst thing that’s ever happened to them, and nothing like this will ever happen again. Right there, the Probation Officer can point to his or her file cabinets and point out that, or the 465 people they personally supervise, about 265 are second-time, or subsequent offenders. They can honestly say that more than 1/2 of the people they monitor have said that same thing before, only to get in trouble again. And many of those people are otherwise good people with good jobs, and stable, or at least apparently stable lives. In other words, the day-to-day experience of a Probation Officer is finding non-compliance. And they usually don’t have to look very far to find it.
Their files are filled with people who go for months of breath and/or urine testing, coming back clean, only to one day give a positive test result for alcohol, marijuana, or other drug.
Again, they’ve heard it all, and probably all within the course of any given week.
This means a person needs to understand the psychology of these people who, after all, make the Recommendation that will be the basis of the Sentence a person receives.
On top of that, Probation Departments differ. Some are just institutionally nicer than others. Knowing which is which is very important in knowing how to approach the whole PSI process. Sterling Heights, for example, has one of the very “nicest” Probation Departments. If it has an opposite, the City next door, Troy, might be it. One would take a very different approach to preparing for a PSI in Troy than one would in Sterling Heights.
As a general rule, everything about DUI cases is better in Macomb County than in Oakland County. Wayne County is, by and large, more like Macomb than Oakland, but that changes as one gets to Courts in the more affluent parts of Wayne County.
There’s an old saying that a person cannot know what they don’t know. Within the context of facing a 1st Offense DUI, it is easy to overlook this critical aspect of properly handling and producing the very best, meaning lenient, result. For those that have been through the process before, there is no doubt about it. This explains why so many of my 1st time Clients are 2nd time Offenders.
Understanding the PSI process in detail, and the nuances of Alcohol Assessment Tests, as well as the perspective of a Probation Officer in general, and their specific Court’s Probation Department in particular, is absolutely fundamental in producing a more favorable outcome in any DUI case. This process cannot be short cut. To do it right takes time and effort, but the payoff can be huge. Who would NOT rather spend an extra hour or two in their Lawyer’s Office to avoid days and weeks of classes or counseling, or other avoidable, expensive and time-consuming penalties in a DUI case?
For me, this is just part and parcel of helping my DUI Clients. To get the best, and most lenient results, it is necessary to do things the right way. Anyone looking for a good DUI Lawyer, beyond just hoping to get the whole case dismissed, should make sure that they retain someone intimately familiar with these elements. In order to be effective, a Lawyer needs to have thorough knowledge of the Alcohol Assessment Testing process, including the 5 markers of an alcohol problem. It is not merely appropriate to ask any Lawyer with whom you’re speaking about his or her understanding of this; it is essential. If I had an out of state relative facing a DUI, I would make sure the Lawyer they hired had this knowledge and experience, and would automatically skip over any that didn’t.
This seems to be at least part of the reason I am getting so many 2nd Offense DUI cases.