Michigan Criminal, Driver’s License Restoration and DUI cases – The Alcohol Bias

Whether it’s front and center, as in a Michigan DUI or driver’s license restoration case, or less obvious, as in many other kinds of criminal cases, the entire Michigan court system has what at times seems like a fixation on alcohol. If you consider a domestic violence case, for example, or a leaving the scene of an accident charge, there is practically a systemic assumption that the person facing the charge was drinking, if not drunk, at the time the incident took place. In this article, I want to explain why, in so many cases, the path through the judicial system leads back to alcohol, and what can and should be done in every case to help with that. Before you dismiss this as just more meaningless prattle by some lawyer, please note that I write this article as a lawyer with very extensive and specialized training in the field of addiction studies. Given the system’s focus on the role of alcohol in so many kinds of cases, it is important that, in order to best protect my client from the “alcohol bias” inherent in the judicial system, I walk into a courtroom with more expert knowledge about alcohol and substance abuse than anyone else in there.

alkie 1.2.jpgIt has long been known that alcohol (and drugs) are “involved” in all kinds of criminal cases. You could put the most socially sheltered person in the role of Judge, and it wouldn’t take too long for him or her to connect the dots and see how drinking sometimes leads to all kinds of trouble. The day this article was written I resolved a case where a young lady had been charged with indecent exposure in a local, Oakland County court. The short version of the story is that she was at a bar with a group of people and she and a male suitor wound up outside, in a parking lot, where the romance heated up a bit too quickly and they were seen in a very compromising situation. The police were called, and both were arrested and ultimately charged with indecent exposure; I represented the woman. I was able to have things worked out so that nothing will ever appear on her record and the whole thing will just go away, but before the Judge decides on any probationary conditions, he ordered that she be “screened” by the probation department. Realizing this happened out behind a bar, it didn’t take much for the Judge to figure the parties here had been drinking. Now, he wants to make sure that this incident wasn’t caused, in some part, because my client has any kind of problematic relationship to alcohol.

In the young lady’s case, the role of alcohol, and therefore the Judge’s concern about it, is pretty obvious, at least in this one incident. Experience teaches anyone in the criminal justice system, from police to Judges to criminal lawyers, like me, that all kinds of bad things can (and often do) happen when drinking is involved. It is basically assumed that anyone who leaves the scene of an accident does so because he or she was drinking. Many, if not most, disorderly person charges occur because someone had a little too much to drink. Statistics show that alcohol plays a role in the majority of domestic violence cases. When kids get into trouble (consider things like mailbox vandalism, for example) it is common to find out they had been drinking. Even stalking type charges, including harassing phone calls, often take place when the actor’s inhibitions have been lowered after having had a few. Add all of this up over years, and then decades, and the court system has seen a clear pattern that now has it as concerned about the presence of an underlying drinking problem as the actions that gave rise to a criminal charge in the first place. So what does all this mean to you?

The cynical answer, although it is not too far off the mark, is that there is a whole industry that has developed to treat the alcohol problems that are seen as underlying these cases. I cannot really address this subject without editorializing a bit here: In some ways, we’ve just gone too far. In this age of political correctness, it seems like everything needs to be “fixed.” We have, unfortunately, become a society obsessed with talking and talk therapy. What I mean, for example, is that back when I was a kid, a schoolyard fight between 2 boys didn’t bring a police response, and many of the kids who were going at it one week would thereafter shake hands and become best friends the next. Now, instead of letting 2 kids settle their differences on the playground, criminal charges are filed, the juvenile court gets involved and at least one, if not both of the kids wind up in all kinds of therapy and anger management classes. And to what end, really?

The problem with all of this lies in the misinterpretation, or really the over-interpretation, of the old saying, “Anything that causes a problem is a problem.” While that may often be the case, does that mean if I have too much pizza one night and wind up with a tummy-ache that I have an eating disorder? Sometimes, things just “happen.” Poor decisions made after drinking don’t mean that the drinking itself is necessarily problematic. That said, it would also be na├»ve to ignore the statistical reality that there is a much higher incidence of alcohol and other substance abuse problems amongst people in the criminal justice system for any reason that there is amongst the population at large. The point I’m making is that you are in no position to be protected from being affected by this “bias” toward the idea that your drinking needs to be examined, if not fixed, if you don’t see the bias in the first place.

The legal system does not see its own bias, or, if it does, doesn’t see anything wrong with it. And to be perfectly honest, no one is going to suffer and die if he or she is required to stop drinking for a while, and perhaps provide breath and urine samples to ensure compliance with that kind of order, and maybe even do some counseling along with that. Still, most people aren’t looking to be saved from themselves, so my goal as the lawyer is to protect you from getting caught up in all that.

Academics and those alcohol and substance abuse clinicians who don’t rely upon court referrals to stay in business know that within the judicial system, the concept of “over diagnosis” is a prominent reality. This means the finding of a drinking problem where there isn’t one, (or finding a person to be “at risk”) and then requiring that he or she submit to education and counseling that is not necessary. The counselors who run the clinics that get their clients from the courts, however, make a lot of money from all of this, so don’t expect them to do anything to stop it. The whole notion that we “treat” everything and everyone too much was first raised over 20 years ago by the renowned Dr. Stanton Peale is his book “The Diseasing of America.” Despite his nearly prescient warning, nearly everything that he feared has come true. The court system has evolved into a prime source of revenue for those in the business of helping people with the problems they don’t even know they have.

All of this means that if you stand before a Judge for any kind of charge, and even if it is not, in and of itself, an alcohol or drug charge, the court is going to look hard to see if alcohol (or drugs) were even remotely involved in the circumstances surrounding it. If so, then you can expect that to become a focal point in what happens to you, unless you are protected against that. While there is no “bulletproof” method of stopping a determined Judge from imposing a lawful sentence that includes alcohol and/or substance abuse counseling, or treatment, this is where I employ my formal clinical education to help minimize that. Of course, I’m keenly aware that “a little knowledge is a dangerous thing,” and realize that I know enough to know that, despite my formal education, I am NOT any kind of clinician. Accordingly, I strategically employ the services of a genuine and respected substance abuse counselor to help. As much as I may be the foremost expert on these issues amongst the people standing in the courtroom, that same knowledge allows me to make sure that when it comes to “experts” in the field, I defer to the best.

This is precisely where, as a lawyer, you either have it, or you don’t. Remember, the goal here is to persuade the Judge away from something that he or she is already inclined to believe, or strongly suspect. This is not a place to “argue.” Lawyers can and should argue with each other, but you’ll never win an argument with a Judge. Instead, the Judge has to be persuaded. This is done diplomatically and tactfully. Finesse is important. Here, being “tough” and “aggressive” is as useful as a dentist trying to cap a front tooth with a sledgehammer. I firmly believe that the potential to be effectively persuasive is either in someone at birth or not. Even if you are lucky enough to have it, substantial time must be spent refining that talent. No professional athlete or musician rises to the top of his or her skill level without countless hours of regular practice.

This puts us squarely in the cross-hairs of clinical knowledge and legal skill, the primary attribute of which must be the ability to persuade. For all that I can say about the matter, chances are rather good that you’ll know it when you hear it, but you won’t hear any of it if you don’t read articles like this and then pick up the phone and call around. Most people who call my office find immediate comfort in speaking with my wonderful staff. If you’re going to find the right lawyer, you have to look for the right lawyer. I don’t need to hard-sell here other than to remind the reader to read and then call around, making sure you call my office, as well. We’re in Monday through Friday, from 8:30 am to 5:00 pm, and can be reached at (586) 465-1980.

Circling back to the subject at hand, the concern about a potential alcohol (or substance) problem lurks beneath the surface of just about every kind of criminal case. That “concern” takes the form of a strong bias. This bias, in turn, results in classes and counseling you may not need and certainly don’t want. The big take-away from this article is that you need to be protected as much as possible from all of this. If you are facing something like your 7th DUI charge, then any such concern or bias on the court’s part is obviously not misplaced. In many other circumstances, however, this concern/bias can be misplaced, and as I noted before, there is no way to protect yourself from it without recognizing it in the first place.

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