Michigan Criminal Defense Lawyer Blog
In part 3 of this analysis of how the alcohol bias in the court system affects all DUI cases in Michigan, we saw how the endless parade of DUI arrest videos does nothing but reinforce the alcohol bias. We also saw how the bias is further reinforced because, while every DUI driver promises that “it won’t happen again,” some of these same people (or others who have made the same promise to a different Judge) return to court for their 2nd or 3rd DUI charge, or otherwise test positive for alcohol while under a probation condition forbidding them from drinking. We left off having touched on how the alcohol bias affects the key role of the probation officer plays in determining what happens in a DUI case. Here, in part 4, we’ll take a closer look at what the probation officer actually does, and why that’s so important.
In DUI cases, it is the probation officer who administers and scores the legally required alcohol assessment test. He or she will also conduct an in-person interview with the person going through the DUI, and then put together a full background and profile of him or her. Using these things, and relying upon the results of the alcohol screening test, the probation officer will thereafter write up a sentencing recommendation that must be forwarded to the Judge, outlining exactly what kind of sentence the person should receive.
It’s really impossible to overstate how decisive the written recommendation made by the probation officer is to the outcome of a DUI case. In fact, it’s not wrong to say that, in many ways, the probation officer is as important as the Judge, while in other ways, the probation is even more important. As we’ll see, the alcohol bias directly affects how probation officers perceive and do things, and therefore directly impacts how they go about their jobs. Here again, I don’t mean to imply anything ill-intentioned or nefarious about this, other than to point out that the alcohol bias is just there. Although it escapes conscious notice, it does, in a very real way, directly impact what ultimately happens to everyone who goes to court for a DUI charge.
As a starting point, we need to be cognizant of the fact that probation officers, however well-meaning they might be, are NOT practicing clinicians. Even so, they have been put in a position to, first, diagnose what kind of drinking problem a person does (or does not) have, and then, second, make a suitable rehabilitative recommendation for him or her. This is worth repeating: the probation officer’s job is to diagnose whether a person does or doesn’t have a drinking problem (and to determine if anyone without a existing problem is otherwise at risk to develop one) and then, essentially, prescribe what kind of treatment he or she should have.
The sentencing recommendation (including any treatment component) of the probation officer is based upon the diagnostic conclusions he or she reaches after a person completes the legally mandated written alcohol screening (assessment) test.
Instead of sending a DUI defendant to a counselor for testing and then obtaining an actual clinical diagnosis, the court system bases much of what it does to every DUI defendant upon the conclusions drawn from what amounts to an over-the-counter questionnaire, scored by a probation officer. Let that sink in for a moment before we continue.
If you’re thinking, “that’s crazy,” then you’re getting the point.
As we explore this stage of the DUI process within this article, it may seem that the issue of the “alcohol bias” has been moved to the background, but, as we’ll see toward the end, because it really does underlie everything, it is, in a very real way foundational (to the point of practically controlling) to what happens to every person going through the DUI process.
Under Michigan law, before a person can be sentenced by the Judge in a DUI case, he or she must undergo a mandatory alcohol assessment. This is, without a doubt, the most important (and most overlooked) part of a DUI case, because what happens at sentencing is a direct result of what does or does not happen here. The final product of this screening is that written sentencing recommendation I have been talking about. It must be provided to the Judge before the sentencing, and set out the specific sentence that the probation department believes should be imposed in each particular case.
The alcohol assessment begins by the person completing a written test that is numerically scored. Thereafter, his or her score is compared with a scoring key that plots where he or she falls on the continuum of alcohol use disorders, from having no alcohol problem, or being at risk for one to develop, to having an early-stage, middle-stage, or even late-stage drinking problem.
In general, the lower the score a person gets, the better. Every point a person scores inches him or her up the problem scale a little bit farther. It is very easy for a person to accumulate more than a minimum number of points, thereby causing him or her to be seen as being at-risk to develop an alcohol problem. As the number of points climbs even a little bit beyond that, it means there is an existing alcohol problem. From there, the higher the number, the more severe the problem.
What’s more, one of the key questions on every screening test is some version of “have you ever been arrested for an alcohol-related traffic offense before?” When someone has to answer “yes” to that (as every DUI driver will), it means they already start out with a handicap. In fact, the way most tests work if a person has been arrested more than once for a DUI, he or she will automatically score enough points to be “diagnosed” as having a drinking problem.
The reality is that anyone taking the test after even a single DUI arrest will already be close to racking up enough points to be seen as having a troubled relationship to alcohol. If they answer any other questions in a way that adds more points to their score (and this is incredibly easy to do, as many of the “better” answers on these tests are somewhat counter-intuitive), they’ll test out as having some kind of problem with alcohol, and that’s just based on the numbers, without the additional influence of the alcohol bias.
On top of that, the fact that so many DUI drivers do, in fact, test out as either having a problem with alcohol, or being at some measurable risk to develop such a problem, only serves to further reinforce the alcohol bias.
As a result of the so-called “diagnosis” (and make no mistake, it is treated as such by the courts), reached solely on the basis of a person’s score on this one written test, the probation officer must specify, in his or her written recommendation to the Judge, what kind of rehabilitative and/or remedial measures the person should have, from education, or counseling, all the way to treatment and/or rehab.
The alcohol assessment isn’t all there is to this, nor does it happen in a vacuum, either. Instead, it is part of a much larger stage in the DUI process called a “pre-sentence investigation” (or PSI), sometimes just referred to as a “screening.” Let’s look at how this unfolds before we look at what it entails:
After a person pleads to an OWI offense, the Judge will order a PSI to be completed before his or her sentencing. The purpose of the PSI is for the probation officer to administer the legally required alcohol assessment, conduct an in-person interview, gather any relevant information about the person as well as the circumstances of the DUI incident, and then make a written sentencing recommendation to the Judge.
Thus, if Dan the Driver pleads to a DUI charge of some sort (say, for example, he gets a plea bargain from OWI to Impaired Driving) on February 1st, and the Judge sets his sentencing for March 1st, a month later, Dan will be ordered to go to the probation department for his PSI before he comes back for sentencing. Normally, the PSI appointments are scheduled roughly at the mid-point between the day a person cuts a plea deal and the day he or she is supposed to come back for sentencing.
In a few courts, after his or her plea has been taken, a person is sent directly from the courtroom to the probation office in order to complete the written alcohol screening test, and then make an appointment to come back in order to complete the rest of the PSI, including the interview with the probation officer. Whenever the alcohol assessment is done, though, the interview almost always takes place on a separate date from the plea (as I mentioned above, roughly half-way between the date of the plea and the date the person is supposed to come back for sentencing).
At the PSI, the probation officer will not only administer the alcohol screening test (unless that has already been completed), but will also ask about and go over all the facts of the case (including what led up to the DUI arrest) as well as the person’s background. The PO will spend time closely examining everything about the person’s life history. Since much of this is done through dialogue, a key part of this stage of this process is the in-person interview. It is important that the client be thoroughly prepared for this.
I sometimes call the whole PSI process “the big 3,” because it focuses on 3 key things about the person:
2. Where they’ve come from (in every sense of the word, meaning to whom they were born, with whom they were raised, what their childhood was like, etc.),
2. Where they’re at (meaning, where are they in life, right now), and
3. Where they’re going (in other words, where should the Judge send them, or require of them while on probation).
As much as the facts of a case matter, who you are as a person also matters. A lot.
Someone younger, with a bad prior criminal record and no job simply can’t expect a DUI to wrap up as well as it typically would for a more mature person with little or no prior record and a good work history.
To the extent that the probation officer identifies anything that might seem to put a person at risk for some kind of difficulty (this includes anything, from a drinking problem to having anger issues or other mental health problems), he or she will discuss those in the written PSI report and make what he or she or believes to be the appropriate recommendation(s) to address them.
After the probation officer has met with the person, he or she will combine all of the information obtained with the person’s score on the alcohol assessment test, and then write up the sentencing recommendation that is sent to the Judge. While the main focus of these recommendations is always on whether or not the person either has an alcohol problem, or has the potential to develop one, every other risk factor in his or her life is examined and covered in this recommendation, as well.
Consider this hypothetical:
Sable Stacy had a few too many and was pulled over for speeding, but was cooperative with the officer. She tested out with a BAC of .12, but otherwise seems to be secure in her job, marriage and mental and physical health. Consequently, the outcome of her case will almost certainly be much better than for Bad Attitude Brenda, who has been struggling with bi-polar disorder and is in the middle of a bitter divorce. On the night of Brenda’s DUI, she was involved in a road-rage incident while hanging out the driver’s side window as she weaved in and out of traffic, flipping off another driver, before she rear-ended some innocent motorist, only to eventually test out with a BAC of .21 after being very uncooperative with the arresting police officer.
Even if a person does not identify as having any problem with alcohol, but does demonstrate that he or she has any other issue(s), the probation officer is going to recommend that it/they be addressed through what he or she feels would be appropriate remedial measures (like counseling). From the court’s point of view, those issues may, at a minimum, have impacted the person enough to have played a role in the drinking that led to the DUI, or, those problems may exacerbate otherwise maladaptive drinking behavior.
And as much as any of that may NOT be the case for any particular person, never forget that the operating principle within the court system is “better safe than sorry.”
We’ll break here, and come back in part 5 to continue our analysis of the PSI and see how the ultra-important sentencing recommendation that follows is affected by the alcohol bias, and how that in turn, ultimately impacts what happens.