Michigan Criminal Defense Lawyer Blog
Most Lawyers who write anything at all about DUI cases tend to focus on the Evidence and ways to beat the case. However optimistic those sales pitches may be, the plain truth is that the overwhelming majority of DUI charges result in some kind of conviction. In most cases, after the Arrest, and after a person has been Arraigned, their Lawyer will work out some kind of “Plea Deal” that either reduces the severity of the offense or results in a Sentencing agreement or bargain.
This article will focus on what I consider to be, by far, the most important (and least talked-about) aspect of a DUI case. If the case is not dismissed on some technicality, or unless a person has gone to Trial and been found “Not Guilty,” some kind of Plea deal will have been worked out by the Lawyer. By law, after a Plea (or conviction, if a person has gone to Trial and lost), but before the Sentencing can be imposed by the Judge, a person must undergo a mandatory alcohol evaluation.
This consists of a written alcohol-use questionnaire, along with an interview by a Probation Officer. This whole process is called the PSI, or Pre-Sentence Investigation. The end product of this process is a PSI Report, or Sentencing Recommendation. Michigan law requires that this Report be provided to the Judge at or before the time of Sentencing to help him or her decide what to do. On the date of Sentencing, both the person being sentenced and their Lawyer are required to read this Report before going in front of the Judge.
It is accurate to say that, almost without exception, whatever is recommended by that Report is exactly what the Judge is going to order. In other words, it is less accurate to call that Report a Recommendation than it is to call it a “blueprint” for what’s going to happen.
I know that anyone reading this who has ever been through the DUI process before, (whether for themselves of with someone else) knows this to be true. In fact, I can safely say to anyone who has been through the DUI process before that whatever was recommended in that Report was, likewise, ordered by the Judge.
This means that unless a person is charged with a DUI where the Evidence is weak enough to be dismissed by the Judge, or otherwise has a Defense to the charge strong enough to “beat” it at Trial, they will be undergoing this PSI. And it also means that when the test has been taken and the interview with the Probation Officer completed, the final outcome of their case will have pretty much been determined. The Probation Officer “scores” the person’s alcohol test. All of these test are “graded” with a numerical score; generally, the higher a person’s score, the more likely they are to have or to develop and alcohol problem. Conversely, the lower a person scores, the less likely it is that they have an alcohol problem, or have the potential to develop one.
Obviously, the higher a person’s test score, the more likely that they’ll wind up in some kind of Counseling or Treatment Program. The whole goal, then, is to ensure that the Client does not score any higher than they should (or, to put it another way, to make sure they score as low as they can) on the alcohol assessment.
The interview with the Probation Officer is also important. Based upon the person’s test score and their impressions of the person after the interview (sometimes together called a “screening”) the Probation Officer will write up the PSI Report and Recommendation.
Thus, the difference between being well-prepared for this part of a case and not being prepared is significant. This is particularly the case because many of the “better” answers to give during the interview seem, at first glance, counter-intuitive. This is the bread-and-butter of my practice. Let me share an example of what I mean.
Say a person is pulled over and goes through the DUI process with a breath or blood test result of .14 (the period makes this hard to read, but that’s “point one four”). An astute Probation Officer will, during the PSI interview, ask the person something to the effect of “How drunk were you, or how drunk did you feel?”
To which pretty much everyone, without knowing better, is likely to say “I didn’t think I was that bad,” or something like that. No one, after all, wants to look like an irresponsible and dangerous person. The problem with that answer, given the fact that the limit for DUI is .08 (“point zero eight”) is that a person who says they were not very drunk is either minimizing the extent of their intoxication, or, if not, then has a “tolerance” and can handle their booze. In other words, a person who has answered this way has just starting digging a hole for themselves.
After I explain this to my Client, I help them remember that although, at the time of their DUI, their judgment was impaired to the extent that they could not properly determine that they had consumed too much alcohol to drive safely, in retrospect, they can see now that they were too drunk to drive. I show them that the “better” answer is something like “you know, it was late, I wasn’t thinking clearly, and I just figured I could make it home without getting caught.” That answer will neither cause them to be categorized as a person who is in denial, or untruthfully minimizing their condition, nor as a person who has, in fact, built up a tolerance to alcohol by drinking somewhat heavily. It may not sound as good coming out, but it is the better answer.
There is, of course, a lot to this. Preparing the Client for both the alcohol assessment (there’s no single test; there are all kinds of different tests, with names like M.A.S.T. Test, SASSI, AUP and The N.E.E.D.S. Survey) and the interview with the Probation Officer is a big deal. It takes hours. Usually, I will begin the process the first time I meet with a Client (which is why my first meetings, or “intakes” run from an hour and a half to two hours) and go over everything again, before they have their PSI appointment at the Court.
They payoffs are huge. Since the difference between a tough Sentence and a more lenient one is really the product of what’s recommended in the PSI Report, then it only makes sense, doesn’t it, to make sure the Client does well at that stage of the case?
This article, is, of course, a very stripped-down, streamlined review of the whole process. There’s a reason why my first appointment with a DUI Client takes about 2 hours, and this is it. But that cost in time is a solid investment against the cost of a condition-loaded, difficult term of Probation that requires Treatment or Counseling, especially if it could have been avoided in the first place.
Remember, the Judge is almost certainly going to follow the PSI Recommendation to the letter. When a person stands in front of the Judge to be Sentenced, it doesn’t matter how charismatic or well-known their Lawyer may be, because the Judge is already set to follow that Recommendation. Anyone standing in front of a Judge at this point will have been far better served by having been well-prepared for the PSI process, and getting a more lenient Recommendation at the outset.