Michigan Criminal Defense Lawyer Blog
In part 7 of this article, we continued our examination of the role of the alcohol bias in DUI cases. I made clear that while just about any lawyer can tell a person what they want to hear in order to get a retainer, a good and honest lawyer won’t do that. As it turns out, there is a cost to telling people what they need to hear, and it’s calculable in dollars NOT paid by people who fall for the hopeful marketing techniques of those lawyers who make it seem like having your entire DUI case dismissed is just a matter of hiring them. Beyond the honesty and integrity of my team, I have a formal, post-graduate education in addiction studies that I use to protect my clients from getting slammed with unnecessary counseling and treatment. Because of what’s in our heads and in our hearts, my team and I just “know” certain things that we can’t ignore simply to make a buck.
For all my self-aggrandizement about my clinical background, the reason I have it in the first place is even more important than the formal education itself: the other half of our practice, directly related to DUI, is driver’s license restoration appeals, where understanding and proving sobriety is the absolute key to success. On that front, we know about the development, diagnosis and treatment of alcohol problems well enough to guarantee to win every initial driver’s license restoration or clearance case we take. In handling over 200 license appeals each year, we hear about and explore, on a daily basis, how people recover from drinking problems. A person can only truly understand recovery when he or she truly understands how alcohol problems develop in the first place. To really see how all this works this, a person must be able to look past the alcohol bias.
In a driver’s license restoration appeal, we have to go over every aspect of a person’s drinking, right up to his or her decision to finally quit. In doing so, we hear all about the struggles, the false starts, and slips (relapses) along the way. Ultimately, we get to what finally worked for a person to get sober. This perspective gives us the benefit of 20-20 hindsight in seeing how people do, in fact, recover from a drinking problem. We get to reverse engineer drinking problems, and how they got “fixed.” We hear people explain what did and didn’t work on their various journeys to get sober, and we hear the stories of what things resonated with people, and what didn’t.
Much of what we hear – specifically, about the things that actually worked – is very different from what those in the court system think they know. In that way, the alcohol bias is a filter that colors, and to an extent, distorts, the real picture.
Take AA for example: a lot of (okay, most) people don’t like it. By contrast, a few take to it right away. What we’ve seen hundreds of times over is that people who had to attend AA while on probation for a DUI charge may not have been ready for the things they heard when they were going, but, at some later point, realized the value of something they picked up from the meetings, even if that was years before.
Most of those people who eventually get and stay sober manage to do so without ever having to return to meetings.
Counseling is another important area where we get the advantage of being able to look back and see what worked, and what didn’t. Carl the Counselor might be the smartest guy around, and maybe a great therapist, but whatever else, Carl certainly isn’t the right choice for anyone with whom he just doesn’t “click.”
This is a cold, hard reality in every setting, from doctor to lawyer to hairstylist. And for as deep as it can get, it’s really not much more than a matter of “different strokes for different folks.”
If a particular counselor and his or her client don’t “click” and there won’t be any kind of real therapeutic alliance between them, and they have nothing more than a relationship that simply won’t work. If a court isn’t aware of this reality, or not otherwise open to the idea that a DUI driver might do better seeing a different counselor, forcing him or her to keep going to someone, or stay involved in some program that isn’t a good fit will produce no benefit whatsoever.
Our background and knowledge gives my team and I a perspective on drinking and recovery that is better than anyone’s, including the court system’s. While the courts try to help, they can only do what they know how to do, and since the courts are NOT in the business of substance abuse counseling and treatment, their clinical knowledge is necessarily limited.
I have a physician friend who once told me something that really opened my eyes. He said that when you go to your doctor complaining of something that’s outside of his or her field of specialty and requires surgery, he or she will hand you a card, saying “call this person.” Your doctor almost certainly has no real idea if that surgeon is good, bad, fast, slow, or anything else about him. It’s not like your doctor is in the operating room observing; he or she just knows that this person “does” the kind of work you need.
It’s the same with lawyers. I know lawyers from all different practice areas. If I’m asked about something like worker’s compensation, we have a card for a guy who does it. I have no idea, really, if he is great in the hearings, or just fair. I don’t know if he’s liked by everyone at the bureau or not. As my doctor friend said, I just know that this is a local guy who does those kinds of cases.
Ditto with the court system and who they use to counsel and treat people in OWI cases. The courts have no basis to compare one counselor with another, and almost always wind up using people who are “local” to their location. Of course, there may some great therapists in that bunch, but the selection process is more about who is local and who does the work, more than anything else.
Moreover – and this is huge – the court system is entirely without the ability to look back and evaluate if what it ordered in any given case worked or not, and why (or why not). In other words, the courts have no way to do long-term follow up with the people that go through the system. A court will assign whatever remedial measures it has at its disposal (again, that’s almost always something local to where it is situated), and then never check on whether what was ordered was a good fit, or not.
The only feedback a court gets about the remedial measure it orders in a DUI case is if the person completes probation without any trouble. Beyond that, a court has no idea if whatever programs it ordered actually helped a person, other than if that person shows back up on their radar in some way.
I like to use this analogy to make the point a bit clearer:
Imagine you work in a factory that makes widgets, and you run a widget-making machine. When you were hired in, you were shown what buttons to push and levers to operate, and in what order, then set to work. When you are done with a widget, it falls out the back of the machine and lands on a conveyor belt below without you ever seeing it.
In all the time you’ve worked there, you have never actually seen any of the widgets you’ve made. You have no idea if yours are the best, the worst, the smallest, or whatever. All you know is that you’ve worked at your job for 15 years, so you must be doing okay because you haven’t been fired.
That’s about as much feedback people in the court system get regarding what they order for counseling and treatment, except that they do see those who violate, either while on bond, probation, or wind up coming back for yet another DUI. This, of course, only serves to reinforce the alcohol bias because, instead of being able to see how any kind of specific alcohol education, counseling or treatment may have worked for a person, or not, the only thing the court can conclude from such failures is that whatever was ordered DID NOT work.
On top of that, even the best counselor in the world can’t help someone who’s not ready.
Period.
This, in turn, leads to a kind of knee-jerk reaction on many Judges’ part that, for those people who do violate or come back for another DUI, perhaps there should have been more education, or more counseling, or more treatment.
What can and should a lawyer do about that? It’s not like an attorney can expect any kind of success by standing up in court and barking out, “But you’ve got it all wrong, Judge!” In very much the same way as it is sure to backfire by shoving someone into treatment he or she doesn’t need, so would be the result of that kind of behavior in court.
At the end of the day, lawyers can educate by persuasion. When it comes to things like counseling and treatment, we need to let the facts speak the loudest. That means a DUI lawyer should not just stand by and let the facts be ignored, but neither should he or she piss the Judge off in a way that makes things worse for the client. This is a long-term effort…
And to make matters worse, here’s an ugly reality that gets passed over all the time: it is accepted, to the point of being a basic assumption in the clinical world, that the court system is about 10 years (a solid decade) being modern treatment protocols.
There are exceptions, of course, but proof of this can be easily found in examples like a Judge mandating AA every day of the week, or even requiring AA at all, and without considering that it may not be the right fit for someone, and that he or she may respond better to a different kind of counseling or treatment.
Here’s a hypothetical that illustrates the point further:
Small-town Suzie doesn’t live in the “sticks,” by any measure, but neither does she live in any of the more populous parts of Metro-Detroit. After being arrested for her 2nd DUI in her hometown (a place that does not have a Sobriety Court program), she is ordered to go AA at least 2 times per week.
Because of where she lives, Suzie’s options for AA meetings are limited, and without the ability to drive, she must go to the only 2 meetings anywhere near her.
Suzie is attractive and outgoing. When she walks into her 1st AA meeting, she is only 1 of 3 women out of about 30 people, and she cannot help but notice that the rest of the attendees are middle-aged men, many of whom seem delighted to see her walk in. At the 2nd meeting, the group is about half the size, and there is only 1 other woman. While they’re all nice guys at both meetings, Suzie immediately “feels” that all eyes are upon her and, as result, feels self-conscious.
Those feelings, while normal, will immediately kill any potential therapeutic benefit that AA might have otherwise had for Suzie.
She is NEVER going to share her more intimate concerns with these groups.
What is the value of forcing Suzie to continue attending these 2 meetings? It’s almost a 100% certainty that all she’s going to do is go in, hunker down, and count the minutes until the meeting is over and she can leave.
Instead of that, wouldn’t it make more sense to direct Suzie to find an online group of some sort where she’d feel more comfortable? Maybe that would be a younger person’s group, or a women’s group, or, any other “group” where she wouldn’t feel like she was being stared at and would, therefore, allow her to relax and share. Or, how about one-on-one counseling?
Whatever else, modern thinking rejects the idea that a person should be forced to continue doing something that clearly carries no potential benefit. Instead, the idea is that a person should utilize what actually will work for him or her. This is simply matter of recognizing the wisdom of “different strokes for different folks.”
While large swaths of the court system are still kind of stuck on AA, given the fact that there is certainly no shortage of other counseling and treatment options, it seems obvious that the better approach is to use something that actually will work.
The medical community uses this approach: Antibiotic “X” may work great for most people with an upper respiratory infection, but it may simply not work for others (I break out in a rash when given Amoxicillin, for example, and have to take a different medicine).
What kind of doctor would not change a patient’s prescription if the first medication wasn’t working, even though there are all kinds of alternatives?
As DUI lawyers, we have to persuade a Judge to do (and not do) certain things, and one of the best ways to do that is to let our experts do the teaching. This is another place where a clinically sound substance use evaluation can be helpful. A good therapist may be able to convincingly explain to the court (meaning the Judge and/or the probation officer) how and why one approach may not be optimal for a particular person, while another may be much better.
Whether that works right out of the gate, takes time, or doesn’t change anything in the mind of any particular court is, of course, a direct result of the alcohol bias.
For all the things we have examined about the alcohol bias and related matters so far, we could carry on our inquiry much further. As I noted at the outset, just about every single aspect of a DUI case is affected by the alcohol bias. As I also noted, if you’re facing a DUI, especially a 1st offense DUI, either you and your lawyer will confront and deal with this reality, or get run over by it.
It is my hope that the reader has at least gained some sense of not only the alcohol bias in the court system, but also that there is a lot to this whole subject.
Although my team and I are in business to make money, I truly believe that anyone facing a DUI is much better off hiring a “DUI lawyer” rather than some lawyer who just “does” DUI cases. Anyone looking for a lawyer should ALWAYS be a good consumer and read around. There is simply no downside to exploring your options as you search for the best representation. Key to that, however, is to dig for real information, and be attuned to what you need to hear, rather than just what you want to hear.
If your DUI case is pending here, in the Metro-Detroit area, (we concentrate our DUI practice in Oakland, Wayne and Macomb Counties – although our driver’s license restoration practice is statewide), make sure that you check us out as you check around. All of our consultations are free, confidential, and, most important, done over the phone, right when you call. We are very friendly people who will be glad to answer any of your questions and explain things. We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 248-986-9700 or 586-465-1980.