Michigan Criminal Defense Lawyer Blog
In part 6 of this article, we saw how the alcohol bias is consistently reinforced in the court system, and we looked at how the DUI process in Michigan courts has changed over time. As we move into part 7, we’ll look at the alcohol bias and how it affects the counseling and treatment orders made by the courts in DUI cases, and what the role of the DUI lawyer should be at this stage. Once you have a sense of how big and pervasive the alcohol bias really is, then you begin to realize the critical importance of taking whatever steps you can to set yourself apart from the everyone else going through the DUI process, so that you’re not automatically treated just like everyone else.
There are 2 kinds of people who get a DUI: those who do have a drinking problem, and those who don’t. The main problem with the alcohol bias is that it tends to “read” a problem, or potential problem, into everyone who walks into court following a drunk driving arrest. If you DO NOT have a drinking problem or are not otherwise at risk to develop any kind of troubled relationship to alcohol, then it is critically important that you successfully demonstrate that fact. In our roles as Michigan DUI lawyers, making sure our clients succeed at doing this is a key part of our jobs.
There is one big catch to this, however; it has to be true. In other words, the only way to even have a shot at overcoming the alcohol bias is to be able to prove, in a clinically sound way, that even though you come into court as a member of a high-risk group, you are actually NOT a high-risk person, and genuinely do not have any issues with alcohol. This requires a lot more than just jumping up and down and insisting that you don’t have a drinking problem. On a scale of 1 to 10, the effectiveness of simply declaring that your relationship to alcohol isn’t problematic rates a solid zero.
And to be clear, you can’t separate yourself from the rest of the pack simply by going to some sympathetic counselor who will write up an evaluation that says you are fine, don’t have any problems, and all that. The courts have seen and handled that kind of junk a million times over in OWI cases, and can spot that trick a mile away.
Instead, if you’re facing a DUI but really don’t have a troubled relationship to alcohol, then we need to get a clinically sound, honest and thorough evaluation that says so, and clearly explains why it’s true.
Curiously, this same strategy – getting a clinically sound evaluation that explains things – applies to those people who may have some kind elevated risk to develop a drinking problem. In the real world, it is far better to let a qualified therapist make a diagnosis and then suggest the right kind of counseling than it is to leave it to the probation officer do those things.
This is in large part due to one of the very real consequences of the alcohol bias; things get made out to seem worse than they are. The negative upshot of this is that people without an alcohol problem are often seen as having one, or being at an increased risk for one to develop. That same tendency for things to be made out worse than they are applies to those people who do, in fact, have an increased risk of developing a drinking problem (and need education, more than anything else), because they wind up being perceived as having an existing problem (rather than the mere potential for one to develop). As a result, they get pushed into unnecessary counseling or treatment, instead of the kind of less demanding education that would be most helpful to them.
Again, the idea that “it’s better to be safe than sorry” comes into play here, but it winds up being counter-productive, because it’s normal to resent treatment for a problem one correctly knows he or she doesn’t have.
It’s hard enough to get people who really need treatment to go along with it, but one of the fastest ways to send someone running for the hills is to force them to go along with counseling or treatment they really DON’T need. Such misguided efforts can backfire and create more and worse problems than they could ever solve.
In other words, a person who really doesn’t have a drinking problem, but whose relationship to alcohol is becoming troublesome, and therefore risky, is far better served by going through education that focuses on that specific level of his or her situation, rather spending time in counseling or treatment, being taught how to fix a drinking problem that doesn’t yet exist.
When someone is forced into unnecessary treatment, it inevitably creates a resentment that not only shuts them down and prevents them from hearing anything useful while they’re in it, but can also create a barrier to future remedial measures. These resentments can become an obstacle later, if and when a person’s drinking does grow from merely being “risky” to actually becoming an ongoing problem.
This is another place where the right DUI lawyer can make all the difference. Remember, the alcohol bias is reinforced by the fact that just about everyone arrested for a DUI will be very outspoken about how they DON’T have any kind of drinking problem. These kinds of statements are so common that they are really nothing more than background noise in a DUI case, except that experience has actually demonstrated an inverse correlation between the loudness of someone’s protests that they don’t have any issues with alcohol and the actual likelihood that they don’t.
Unfortunately, it’s human nature to want to be right. All of us prefer to have our beliefs validated, rather than shown to be wrong.
This is powerful marketing information for lawyers, but it can be entirely counterproductive for the client who falls for it.
For many lawyers, the old adage that “the customer is always right” holds sway here. In other words, if a potential client is ready to plunk down a retainer while insisting that he or she doesn’t have a drinking problem, and shouldn’t have to do all this testing and counseling stuff, it’s just plain better for business to not disagree with him or her, go to court, say what the client expects you to say, and then shrug your shoulders when things don’t go the way he or she had hoped.
That should never happen, but it does, all the time. Chances are, if you’ve read this far, you’ve also seen (and perhaps a bit tempted by) the kind of marketing that makes it seem like a phone call and hefty retainer is the only thing separating you from making everything about your DUI just go away.
I’m proud to say that my team and I don’t work that way. In fact, we couldn’t be that way if we tried, because we know better, and we’re honest.
Consider this article, for example; at this point, I have written 25 pages (out of 31 total pages), over 8 installments, trying to make an important point. It certainly would have been far easier for me to have written 6 separate articles that I could have put together with much less effort that would appeal to potential clients very willing to pay for what they want to hear (“hire us, we can make this all go away…”), rather than what they need to hear.
Years ago, I referred a civil case to a lawyer colleague of mine, and told him I was sending the client his way because he was such an honest man. He thanked me, and then joked that being honest had probably cost him a fortune over the years.
Sadly, that’s very true.
That said, it’s not like my team and I are some kind of sadists who are going to try and tell all of our clients that they have drinking problems when they don’t, but we are guided by a strong ethical and moral commitment to be honest and to explain how things work in the real world. I hope that’s exactly what I’ve done so far in this piece.
This is very important to how we handle DUI cases. I have pointed out in many of my previous articles that it’s far better to be told what you need to hear, rather than what you want to hear. I certainly hope that I would be treated the same way by any professional that I hired to help me out.
Unfortunately, a lot of legal marketing strategies play into telling (and, in turn, selling) people exactly what they want to hear. Remember, beginning in part 1, I noted that of the 31,000-plus people arrested for a DUI, less than 2-tenths of 1 percent (.09% in 2017, and .15% in 2018) went to trial and won. Overall, over 98% of the people in Michigan who walked into to court for a DUI of some kind walked out of court with a DUI of some kind.
Still, some people run to hire the lawyer who makes it seem like he or she can just make their charges disappear, or who is the first to call them back over the weekend, or for lots of other wrong reasons.
Instead of focusing on the things people really need to hear, a lot of lawyers sell their services by playing to people’s fears, and hopes.
In terms of what people really do need to hear, there is a lot to be said about the alcohol bias. It’s not sexy, it’s not good news, and it flies under the radar of almost everyone, or at least anyone who doesn’t read things like scholarly publications about addiction and recovery. Like oxygen, the alcohol bias is everywhere, but it’s also invisible.
There is no getting away from the empirically validated fact that, as a group, DUI drivers do have a higher incidence of alcohol problems than the population at large. This means that if you’re facing a 1st offense DUI, there’s a greater likelihood that your drinking is an issue than for everyone else. This is the foundation upon which the alcohol bias is built, and that bias will affect every part of your DUI case.
If you’re back for a 2nd offense DUI, the law presumes you have a drinking problem, and makes sure you are treated accordingly; your driver’s license will not be suspended, it will be revoked, meaning taken away for good. The law is written to treat all 2nd and 3rd offenders on the basis that have some kind of alcohol use disorder.
A good lawyer needs to make clear that, in any repeat offender case, the alcohol bias is subordinated by the presumption that the person does, in fact, have a drinking problem, and not indulge the client’s unrealistic hopes and statements just to get paid. Any person looking for someone just to agree with them can probably get that for free, on the next bar stool.
A good lawyer should be more concerned about making things better for the client than making friends with him or her.
In 2nd and 3rd offense cases, when you walk into court, the only question under consideration about your relationship to alcohol is how bad it’s gotten, not whether or not there is one. The existence of a drinking problem is a foregone conclusion.
Being lawyers of conscience requires that we level with someone facing a 2nd or 3rd DUI that his or her relationship to alcohol is, in fact, problematic, at least to some extent. To actually produce the best outcome possible in those cases, we can skip over most of the alcohol bias stuff, and focus on damage control, instead. Still, as lawyers and people of integrity, we do also try to help our clients stop their drinking from spiraling further out of control, if that’s an issue.
If a potential client is only looking to hire some spineless lawyer who will tell them what they want to hear, and will just go along and agree that their 2nd or 3r DUI is more about bad luck than the result of any kind of problematic drinking pattern (and yes, this included binge drinking, however infrequent), then good luck to everyone when the case wraps up and the dust settles.
One thing we NEVER want to hear in our office is a recrimination that sounds anything like “…but you told me…!”
What this all means is that the alcohol bias is real, based in fact, and needs to be acknowledged and strategically worked around, even when, in a 2nd or 3rd offense DUI case, the bias itself isn’t the controlling factor, and the person’s assumed and presumed troubled relationship to alcohol takes center stage, instead.
What it doesn’t mean is that simply agreeing with a client, or just telling him or her what they want to hear, will help in any way. Nor does it mean that, morally speaking, that it’s okay to ignore any real signs of trouble with a person’s drinking, like when somebody comes in with a BAC that’s nearly 3 times the legal limit.
That may be a good way for some lawyer to reel in a retainer, but it’s bad for the case, and bad for the client, as well.
I think my team and I have shown ourselves to be unique just by addressing the subject the way I’ve done in this article. As much as we’re in business to make money, our integrity is not for sale, and we operate from the belief that we should treat others the way we would want to be treated, especially in any kind of vulnerable situation.
For as laudable as that may be, it should also be a reminder to anyone reading this to be a smart consumer as you look for a lawyer. Whether you hire us or not, or if your case is outside of our geographic practice area (Oakland, Wayne, and Macomb Counties), don’t fall for anything that sounds too good to be true. Also, remember that, on the one hand, you’ll never get top-rate legal services for cut-rate prices, but that it’s just as easy to pay way too much for nothing more than mediocre legal skills, as well.
As you do your homework, search for real information, and always check out all of your options.
We’ll break here, and return, in part 8, to finish our examination of the alcohol bias in DUI cases. As we wind things up, we’ll zero in on counseling and treatment, and how, even though the court system lacks the perspective to see what really works (and what doesn’t) in the long term, it alone decides what kind of education, counseling or treatment a person going through a DUI should have, and then orders it.