Michigan Criminal Defense Lawyer Blog
In part 2 of this article, we continued our examination of the most important part of a Michigan DUI charge and began looking at the role of the mandatory alcohol assessment. We’ll start out here by examining the clinical reality of alcohol assessment and diagnosis, and how that gets misdirected in a DUI case. This has huge implications for what will actually happen to you. Fortunately, we’ll also see that it doesn’t have to be this way, and that lots can be done to make the outcome of any DUI case better, whether it’s a 1st offense, 2nd offense, or even a 3rd offense (felony) case.
A big problem in the DUI world is that the whole concept of an alcohol assessment means the probation officer is required to “play” clinician. In other words, for the most part, a probation officer has about as much ability to diagnose the presence or absence of an alcohol problem as he or she does to diagnose lung cancer. Yet that hasn’t stopped any of them from doing it. Real clinicians understand that a correlation, like that between an elevated BAC score and a tolerance to alcohol, is just a risk factor, not an absolute. You’ll die of old age, however, before you ever meet a probation officer who does not see an elevated BAC score as “proof” that a person is a heavy drinker. For that matter, most Judges think that way, as well. I can handle the Judge, because I get to address him or her directly. Probation, however, exists in its own bubble, and that makes knowing how to deal with it so critically important.
This is another one of those subjects about which I could write a book, but I can cut to the bottom line with one example: Very few probation officers have any formal training in substance abuse assessment and counseling. They get their “experience” on the job. You have to remember, however, that their “job” is dealing with people who have, without exception, been caught using alcohol to excess and been arrested for a crime. This kind of experience is certainly criminal justice experience; it is decidedly NOT clinical experience. There are some probation officers who have earned credentials in substance abuse counseling, even though their job duties do not involve any kind of therapeutic counseling whatsoever. Here’s where those “counseling” credentials can be shown to be essentially worthless:
In the clinical world, the single most important thing between a counselor and a client (some say “patient” because of the importance of this relationship) is called the “therapeutic alliance.” This is an expression of how well the therapist and client get along, and it is based, more than anything else, on the trust the client has in his or her counselor. That makes sense on just about every level you can imagine. Now, hold that thought…
When a DUI driver is ordered into counseling, he or she has to sign a release authorizing the therapist to communicate with the probation officer. The therapist is generally required to release everything, from progress notes to attendance logs, to the probation officer. Moreover, because it is a condition of every DUI probation order that the person does not consume any alcohol, the counselor is duty-bound to report any use of alcohol to the probation officer as a violation of the client’s terms of probation. Therapists HATE this. There is just about nothing that can destroy the trust between a therapist and client more than when the therapist has to play tattletale. And in this situation, it’s even worse than just having to betray the client’s confidence because in a normal, non-probation therapist-client relationship, a “slip,” where someone who is not supposed to drink at all does so, is normal. Thus, a person may show up for his or her session with the counselor and, when asked about the previous week, admit to having consumed alcohol. The therapist would then want to explore that with the client, and see what could be learned from it. In that context, a “slip” is used as a learning tool.
That won’t happen when the therapist is obligated to run and tell the probation officer, who then has the person brought before the Judge for a probation violation, where he or she faces going to jail, amongst other things. Whatever else, probation violations are never good. The point to be made here, though, is that a while probation officer may have earned alcohol or drug counselor credentials, if he or she genuinely was a member of the helping profession of real alcohol and substance abuse counselors, then it would be understood that once the client can no longer confide in the therapist, there is precisely zero chance of anything beneficial coming from continuing that counseling. Who would want to place a therapist in a position to totally destroy the therapist-client relationship and obliterate any chance of anything beneficial resulting from it?
Despite all that, the court system delegates the responsibility for deciding how to counsel, educate, treat and supervise a person to the probation officer. The probation officer is the go-to “expert” on alcohol and drug issues, and is essentially required to assume (I’d say play) the role of a clinician in determining whether a person has a drinking problem or not, and what to do about it if the probation officer thinks so. Seriously, if a person does not have the clinical background to make a formal diagnosis, how useful is it to let them decide on a counseling or treatment plan based upon that?
That turns out to be lucky for me, however. I have a formal clinical education and I understand the substance abuse diagnostic process. Unlike a probation officer, whose ONLY role is to assess people coming in, much of my day-to-day work involved working with people who have established recovery and quality sober time as part of my driver’s license restoration practice. I meet with people every day who have overcome a drinking problem, and I’ve encountered every recovery method and process you can imagine. I know, firsthand, the efficacy of treatment protocols the probation officer has never even heard about. Unlike the probation officer, however, I am fully aware that I am NOT an alcohol or substance abuse counselor.
By contrast, because of my DUI work, I see people who are suffering from a drinking problem, and I deal with them at all stages, from outright denial to contemplation to being ready and willing to get help. This is a very unique set of vantage points that allows me to see things from both ends of the spectrum, without attempting to “play” clinician.
Therefore, when it comes to being “assessed” by a probation officer, I can prepare my client in a way to avoid any finding that he or she has, or is at risk to develop an alcohol problem, assuming of course, that there isn’t one to begin with. And even when the probation officer gets it wrong, as they so often do when a person has a high BAC, I am uniquely able to argue, based upon a genuine clinical understanding, that the BAC score is not determinative in that regard.
If you’ve been paying attention, then you’ve noticed that I have pointed out that I have substance abuse credentials, and I’ve also pointed out, albeit critically, that a few probation officers may have some too. I’ve just finished criticizing those few probation officers for “playing” clinician because they don’t treat anyone, but have been relatively quiet about that as it concerns me. That’s because I don’t pretend to counsel anyone, and I use my clinical training to make sure that my clients are only evaluated and treated by genuine, honest-to-goodness substance abuse counselor. Thus, when I stand in court with a sentencing recommendation that makes the time-tested error of recommending counseling or treatment for a first time offender, and relies, at least in part, on the person’s elevated BAC score, I can use my clinical background to explain to the Judge that, amongst other things (there are always lots of “things” probation gets wrong when it plays pseudo-clinician), the BAC is not an appropriate criteria to use to decide whether a person needs help or not, and – hold on for this, because it’s key – that since neither the probation officer, nor I, nor anyone else in the courtroom is a bona-fide substance abuse counselor, any decision to counsel or treat the person should be based upon a real evaluation completed by a real clinician. It’s hard to fault that logic because it is without fault.
I have used this tactic to keep countless clients out of unnecessary counseling and treatment. When I don’t have high BAC scores to deal with, I can usually get a much better sentencing recommendation out of probation right from the start. To make that happen, I thoroughly explain, so that my client fully understands, how the alcohol assessment (test) works, meaning what it asks about and how answers are interpreted (scored, actually). This is why my first meeting with a new DUI client will last at least 2 hours, and often longer. It’s also why I produce the very best outcome possible in any DUI case, and why my fees aren’t set to compete with any lawyer who thinks his or her best quality is having the lowest prices. I work to a much higher standard, and although I keep my fees as reasonable as I can, they reflect the level of expertise and service I provide.
So it began with my observation that what happens in a DUI case is largely a factor of what is recommended by the probation department. From there, I was motivated to find out how to produce a favorable recommendation. I realized rather quickly that it was far better to procure a lenient recommendation in the first place, and ask the Judge to go along with it, given that Judges are predisposed to do that anyway, than it was to do nothing but wait and see the recommendation, and then try and fight an uphill battle to persuade the Judge to disregard some part of parts of it. In a nutshell, that’s what separates me from the pack, but it’s a big separation and it’s really like the difference between a ride in a luxury sedan or a seat on a crowded bus. You don’t have to be Sigmund Freud to figure things out, but as the old saying goes, you either make things happen, watch things happen, or wonder what happened. The most important part of a DUI case is properly handled by making things happen, not by watching or wondering.