Michigan Criminal Defense Lawyer Blog
In part 4 of this article, we began looking at the mandatory alcohol assessment (screening) in Michigan DUI cases, how that’s part of the larger, PSI (pre-sentence investigation) process, and how all of that is influenced by the alcohol bias. As I pointed out, one of the questions on every alcohol screening instrument (test) asks if the person completing it has ever been arrested for an alcohol-related traffic offense. Thus, anyone taking such a test because of a DUI begins with a handicap. Moreover, the fact that a person is in a probation office for an interview following a DUI means that, on at least one occasion, drinking has had a substantial negative impact on his or her life. Here, in part 5, we’ll direct our focus to the written sentencing recommendation that is sent to the Judge by the probation officer after, and as a result of, the pre-sentence investigation and alcohol assessment.
This is really THE key to what happens to anyone going through a DUI, and you can take this much to the bank: Every Judge, in every court, follows the PSI sentencing recommendation very closely. Most will follow it to the very letter, but you won’t find ANY judge who will deviate significantly from what has been recommended by his or her probation officer. This means that the sentencing recommendation is really the blueprint for what is going to happen in a Michigan DUI case.
This means that it is imperative to be thoroughly prepared for the alcohol screening test and the PSI (especially the interview with the probation officer) beforehand, because the key to success is to get a better (meaning more lenient) sentencing recommendation in the first place. Remember, success in a DUI case is always best measured by what does NOT happen to you. In that context, less is always more. Part of being thoroughly prepared means coming to understand how the alcohol bias does, in fact, affect the PSI and screening process.
This is exactly where my specific clinical training (I have completed a post-graduate program of addiction studies) can directly and favorably impact how a person scores on this test, which, in turn, will directly affect what does – and does not – happen to him or her at sentencing. As with so many things in life, success is usually the result of good preparation. If success is not the result of careful and thorough preparation, then doing well in a DUI only happens by sheer luck, even though it kind of goes without saying that anyone facing an OWI charge isn’t obviously on a lucky roll to begin with…
To make this a bit clearer, consider, for a moment, that one of the questions on every alcohol screening test is whether or not the person taking it has ever been arrested for any alcohol-related offense. Of course, someone going through a DUI must answer “yes” to this question, thereby adding points to his or her score. In general, the lower a person’s score, the better.
This, of course, means that everyone answering the questions on an alcohol assessment test as the result of a DUI starts out with point, and, therefore, a handicap, as well. Obviously, it wouldn’t make sense if the test ignored any potential risk factors regarding a person’s relationship to alcohol, and being arrested for a DUI is a textbook example of one of those. We must never lose sight of the fact that the court system screens DUI drivers in a way that’s consistent with the idea that “it’s better to be safe than sorry.”
Worse yet – and this is very important – some of the questions on the test are asked in such a way that the better answer (meaning the one that has no points) seems counter-intuitive. In other words, the way many people would be inclined to answer a question will, contrary to what they think, add points to their score. If you’re thinking this sounds like it’s “tricky,” then you’re getting the point.
Thus, what people often think is the “right” way to answer some of the questions posed within these tests winds up adding points their score ad making them look all the worse.
This is something we rather intensely focus upon in my office, because it’s really the key to producing a better outcome for the client. We specifically prepare our clients to go through the PSI process with the goal of making sure they know what to do and say to ensure the best recommendation (and therefore the best result) possible.
If the probation officer, through his or her investigation, doesn’t identify any areas of immediate concern about a person’s relationship to alcohol, then the recommendation that follows will be less complicated (meaning the person will have to do less “stuff”) than if a person is seen as having some kind of problem (with alcohol or otherwise), or as being at some kind of increased risk for any such problem to develop.
Underlying every part of this process, though, is the background reality that DUI drivers do, in fact, have a statistically higher rate of alcohol problems than the larger population, and that these problems are not always obvious. Add to that the sheer number of people who get caught violating a bond or probation condition requiring them to abstain from alcohol by drinking, and what you have is a regularly occurring reinforcement of the alcohol bias playing out in courtrooms everywhere.
Probation officers, therefore, not only look, and look deep, for any indications of an alcohol problem, but have regular experience that teaches them that people will hide things and minimize their drinking. Beyond that, many people may not even be consciously aware that their drinking is causing any problems, and may otherwise be in denial about the true nature of their relationship to alcohol.
In line with the old saying that you can’t disprove a negative (“have you stopped beating your dog?”), it’s important to remember that for all the things seen in the court system that actually do reinforce the alcohol bias, Judges rarely, if ever, see anything that tends to negate it.
Think about it this way: you’re in trouble for a DUI, and you’ve been ordered not to drink. If drinking isn’t a problem, then this shouldn’t be hard, and for most people, it’s not. Even so, the fact that most people do not test positive for alcohol while under orders to refrain from drinking doesn’t really do anything to negate the alcohol bias.
However, the fact is that drinking is so important in some people’s lives that they will do it anyway, even though they’ve been ordered to abstain, under threat of jail, and while being tested to make sure they don’t. Then, they get caught. That says a lot about how corrosive and influencing alcohol can be to some, while simultaneously reinforcing the alcohol bias to those within the court system
About the only conclusion that makes sense is that when a person who is under threat of jail to not drink does so anyway (and gets caught), it either means he or she has a problem with alcohol, or else is basically giving the middle finger to the court.
Neither of those is very good.
What those who work in the system learn, over time, is that (to use a therapist’s phrase,) as you peel back the onion, you find lots of family histories of alcoholism, people with coping problems, and all kinds of other things that can cause or have caused alcohol to become a troublesome factor in their lives. People turn to alcohol for all kinds of reasons, including the often overlooked fact that they like it.
In that regard, one thing that often gets overlooked in this drive to “over-diagnose” everything is that not everyone who develops a problematic relationship to alcohol started out because they were trying to escape some dark part of their lives. Some people drink because it feels good, and is fun, and they just keep doing it.
Likewise, some people don’t really learn how to have fun without drinking.
For all the people who do develop a troubled relationship to alcohol, the fact is that most people who drink never develop any kind of problem with it.
Moreover, despite all the things that do reinforce the alcohol bias in the court system, the real “problem” is is that it doesn’t apply to everyone, and, indeed – it does not even to most people – facing a 1st offense DUI.
The fact, all too often overlooked, is that most people who get a 1st offense DUI will never do it again.
Remember, we have to take our shoes off at the airport because 1 guy tried to sneak in a “shoe bomb.” Still, and as I’ve already said a number of times, the operating principle in the court system is that “it’s better to be safe than sorry.” This means that just about everyone going to court for a DUI will, at a minimum, be ordered to complete some kind of alcohol education class, or classes.
However, as I’ve tried to make clear, the court system’s experience is that sorry, it wont’ happen again is heard everyday, and plenty enough to make playing it safe the preferred route. For every person who does present with identifiable risk factors indicating a problem, or potential problem with alcohol, you can find another who will look, to all the world, like his or her 1st offense DUI was an isolated incident and is unlikely to ever get in trouble again – until they pick up a 2nd offense.
Because the alcohol bias is essentially inseparable from the idea that it’s better to be safe than sorry, everyone who gets a DUI can count on at least being ordered to complete some kind of alcohol education. That’s not a bad thing, and there is no rational reason to disagree with this kind of measure, at least when what’s ordered is reasonable.
Reasonable is not always what happens, though. Here’s a real-life example of something patently unreasonable:
I was once retained for a probation violation on behalf of someone who was given a rather strict probation after a DUI charge. Although I was not the lawyer for the original DUI case, I was shocked to find that this person, with no prior record except for that single DUI, had been ordered, as part of her probation, to go to AA every day, 7 days a week. Despite the crazy burden it imposed in her life, she had managed to do so for well over 6 months, until, by request to the Judge, she got it reduced to 5 days a week.
Because of my formal training, along with a rather deep well of practical, clinical knowledge (certainly enough to know that I am NOT a clinician), I recognized that such a probationary order would undoubtedly create resentment about AA, would likely backfire, and would, in turn, produce the opposite of any therapeutic benefit.
And that’s exactly what happened. Not surprisingly, this bad idea didn’t work. The client retained me after testing positive for alcohol, even while going to 5 AA meetings a week.
Whatever understanding (or lack thereof) about AA and treatment the court and probation department overseeing this case did or did not have, what lesson do you think they learned from this episode?
That DUI drivers really are high-risk individuals. That even when action is taken on the premise that “it’s better to be safe than sorry,” people will still drink. That they probably shouldn’t have let up on the AA every day, 7-days-a-week thing.
The court system’s alcohol bias was certainly reinforced in this case, even though that reinforcement was predicated on a complete misunderstanding of all kinds of things.
It’s at a point like this where we see that the alcohol bias can go from being grounded in fact, to actually creating the “facts.”
Clinically speaking, there is simply no support for “slamming” anyone with daily AA meetings.
In fact, within the AA program itself, some people buy into a concept called “90 in 90,” which means attending 90 AA meetings within 90 days. This super-intense schedule is kind of like a recovery boot-camp for newcomers, or people who have recently relapsed.
For those who give it a try, it is NOT considered unsuccessful to have stopped at 45 meetings in 45 days, or to have done something like 70 meeting in 90 days. In other words, even intense followers of the AA program understand that in life, things just happen. There is no penalty in AA for trying, but failing, to do 90 within 90. In fact, it’s the effort that counts.
That a person would face jail for not going to a meeting every single day is as unsound an idea as I have ever seen. This is where the alcohol bias begins to be clearly counter-productive.
For all the real-world experience Judges and probation officers have dealing with the problems caused by alcohol, they are NOT practicing substance abuse counselors. While there are some probation officers who have educational backgrounds in substance abuse and counseling, the job of a probation officer is law enforcement, not rehabilitation.
No matter how many credentials they may have, when someone works in a position where they can get you locked up for drinking, their role is not, in any way, therapeutic.
We’ll break here, and return, in part 6, by looking at how the alcohol bias has affected the DUI process in the courts of Wayne, Oakland and Macomb Counties.