In part 1 of this article, we began a comprehensive, multi-installment look at the “alcohol bias” underlying every DUI case within the court system. In this second part, we’ll continue our examination, this time focusing on how the court’s experiences with DUI cases serves to reinforce the bias. This will not be an examination of the legalities involved in DUI cases, or anything like that. Instead, we’re looking at what those who work in the court system see, day-in and day-out, that builds upon the statistical reality that DUI drivers, as a group, have a higher rate of drinking problems than the population at large, and causes the court to believe that they require “special” handling.
Earlier, in part 1, I noted that in Michigan, the State Police are required, by law, to audit and track every DUI case from arrest through final disposition each and every year. Although the marketing messages of many lawyers might lead you to think otherwise, the fact is that less than 2% of all the cases that make it to court are dismissed, or “knocked out” for any reason. Here, it’s worth pointing out again that, within that small group who do manage to get out of a DUI charge, most have their cases dismissed for legal problems with the evidence.
If those numbers aren’t bad enough, it gets much worse when we drill down to the percentage of people who actually “win” and beat a DUI charge at trial. Each year, less than 0.2 (that’s less than 2-tenths of one percent) of people charged with a DUI actually go to trial and get found “not guilty.” Among the more than 31,000 people arrested for a regular DUI in 2018, only 48 went to trial and won. In 2017, out of the 31,000-plus people arrested for a DUI, a mere 31 were acquitted after trial.
While this is good fortune for any of the small number who have their DUI cases dismissed, or the even fewer that win at trial, none of those results are directly correlated to any kind of finding that they were not drunk, or were not driving over the limit. Instead, these lucky breaks most often happen because of problems with the evidence.
At the end of the day, these marginal figures do absolutely nothing to weaken the underlying assumptions of the alcohol bias; If anything, especially in the larger context, these extra-ordinary situations only reinforce them.
As a side note, given that a certain number of DUI cases do and will get “knocked out” of court, it is critically important to have a lawyer who knows how to carefully examine every bit of evidence in your case in order to see if there is a way out of it. Having a case dismissed doesn’t happen by accident, and a DUI lawyer must approach every case with the intention (and not merely the hope) of finding something that can be used to get the case dismissed, or at least help reduce it by way of a plea bargain.
If we can put aside the careful, technical treatment of this subject for a moment, the takeaway here is that the alcohol bias is based in fact, and that if you’re facing an OWI charge, you’re going to walk straight into it. The alcohol bias doesn’t just exist in theory, it is THE real-world reason why so much of the DUI process runs as it does, and seems so tough.
Given that less than 2% of all the people who go to court for a DUI ever get out of it completely, combined with all the other factors that make up the alcohol bias, it’s not like anyone who works in the court system expects to see many people charged with a DUI prove they weren’t driving with a BAC that was over the limit. Whatever else, the people in the court system don’t see a whole lot of innocence when it comes to DUI cases.
If you consider that most of the people who do manage to “beat” a DUI do so for technical and legal reasons involving proof and evidence, rather than whether or not they were actually over the limit, you can understand why the system pretty much assumes that just about everyone charged with a DUI was, in fact, driving drunk, and is, therefore, more at risk to have an alcohol problem.
When you add in the fact that, despite being ordered to refrain from consuming alcohol while their case is pending, many people drink anyway, and then get caught doing it, the combined effect is to make the idea of testing, as a condition of bond, not only standard practice in all DUI cases, but absolutely necessary.
Up to this point, we haven’t talked much about the actual facts of a DUI case yet. Now it’s time to do that. With this as our backdrop, we can turn to how the alcohol bias actually influences the DUI process, and what happens to DUI cases as they make their way through court.
Why does anyone get arrested for OWI in the first place?
Because something goes wrong on the road. It’s not like the police are driving around looking to give out “good driving” awards, and just happen to find somebody who was drunk in the process.
Sometimes, the police are called to a situation that requires their presence, like an accident. Or, they get a call that someone fell asleep behind the wheel at a drive-thru window (yes, we’ve had several cases like that).
Other times, they just come upon something, and pull someone over for swerving, or speeding, only to find out the person is over the limit.
Everything that happens gets put into the police report. This is not to say that police reports are any bastion of accuracy, but as a result of reading so many of them, Judges, prosecutors and probation officers alike begin to see certain patterns (one we’ll get to later is that the most common answer given by anyone pulled over for a DUI, when asked how much they had to drink, is “2”). The one that matters right now is that the police usually see something amiss out on the road, and go from there
Here’s another side note to tie into the side note from above: one of the main reasons we almost always obtain the traffic stop video is to make sure the “reasonable suspicion” stated by the officer in his or her report does, in fact, show up on the video (more on that later, as well). Even if a person turns out to be way over the limit, the police must follow certain protocols in making a traffic stop, and for all the people who do get convicted of a DUI each year, there are thousands who do successfully challenge the evidence against them.
My team and I have handled cases, for example, where there was no breath test given at the police station, or where the breath test was given on a machine that was malfunctioning, and we’ve had the DUI charges dismissed. What was never reached, even in those cases, was whether the client actually was, or was not, over the legal limit. In other words, we were successful in getting the cases knocked out because we were able to exploit problems with the evidence.
The same goes for challenges to the traffic stop. We’ve had cases dismissed on legal grounds for problems with the stop. However, the fact that the client failed all field sobriety and breath tests thereafter never came up (strategically, of course). That’s just how the law works.
The point is that there is almost nothing in a Judge’s experience to create any concern that people who weren’t actually drunk when they were driving are being wrongfully charged with, much less being convicted of, OWI charges. As I noted before, the court system doesn’t see a lot of innocence when it comes to DUI cases.
Instead, what IS widely seen within the court system is that people tend to minimize their drinking, something that is often a marker of a troubled relationship to alcohol.
Again, this is worth repeating: even among the less than 2% of all DUI cases that get knocked out of court, the majority are for technical, legal problems with the evidence, NOT because there was any finding that the person was not drunk. All the legal stuff used to challenge (and beat) DUI cases is well and fine, but none of it really does anything to negate the alcohol bias. Remember, the bias itself is a product of what is seen in the court system day-in and day-out.
Judges are, of course, lawyers. As such, they have extensive experience with DUI cases, either from having worked as prosecutors, or having been in private practice, before getting to the bench. Almost all of them have seen a million police reports and been involved in countless DUI cases from one side or the other (and sometimes both).
As I noted above, they have seen, for example, that in the overwhelming majority of DUI cases, when the police ask someone how much they’ve had to drink, the answer is something like “a little,” or “2 beers,” or “I had a few drinks a long time ago.” Judges have seen this kind of minimization thousands of times over. I have seen it, quite literally thousands of times. The effect of this expected under-reporting by those caught driving drunk only adds to the alcohol bias.
Therefore, as much as a police report can get it wrong, or exaggerate things, what Judges DON’T hear about are things like the police raiding a local church, without any cause whatsoever, and forcing all the members of the choir to take breath tests, and then arresting anyone who had a BAC over the limit and a car in the parking lot.
In other words, it is an exception for a DUI case to not have a basis in fact – that fact specifically being that a person was operating a vehicle while impaired by alcohol, and/or with a BAC over the legal limit.
Moreover, in the overwhelming majority of DUI cases, there is no kind of “close call” regarding a person’s breath or blood test results. In other words, very few people come into our office with a BAC of .08 or .09., much less anything lower than that. Instead, most people charged with OWI are well over the legal limit.
If I had to guess, I’d say that around half the people we represent for DUI offenses are about nearly twice the legal limit, meaning that they have a BAC result somewhere near .15.
As another side note, in my nearly 30 years as a DUI lawyer, the lowest BAC I’ve seen result in a DUI charge (excluding anyone charged with “Zero Tolerance, or “Minor with a BAC of .02 to .07) was .05, and the highest was .37. The vast majority of our clients, though, come in with BAC results between .14 and .22.
One interesting aspect to this is that most people with really high BAC results will insist that they’re not big drinkers (although this is common with just about anyone facing a DUI charge). With very few exceptions, a non-drinker wouldn’t have the tolerance to drink enough to get to any kind of stratospheric BAC. A true “lightweight” will be well out of it before he or she hits .12, and a moderate drinker will be, as the saying goes, “drunk as a skunk” with a BAC anywhere near .17, which is the legal threshold to charge someone as “super-drunk,” or, as it’s more commonly called, “High BAC. “
Despite all that, people whose BAC results clearly indicate otherwise regularly show up in court, insisting they weren’t that drunk, that they’re not big drinkers, or that they only had a few, etc. What Judges begin to correctly realize, after hearing this over and over again, is that while lots of people minimize their drinking as it relates to their DUI, those with more deeply rooted drinking problems do this to an even greater extent, and really try to downplay their relationship to alcohol, sometimes to absurd degrees. An important part of our job in handling DUI cases is to make sure our clients don’t self-destruct this way.
A steady stream of such unreasonable denials only serves to help reinforces the alcohol bias.
We’ll stop here for now, and come back in part 3, and start with a video and promises, kind of like our DUI version of “Sex, Lies, and Videotape.” At the end of the next section, we’ll begin talking about the key role of the probation officer in the outcome of a DUI case.