Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we defined what is unfortunately an often overlooked but all too common problem in Michigan DUI cases – the existence of an underlying mental health situation involving things like ADD, anxiety, depression, or a mood disorder. This inquiry focuses on both those situations where a person is facing a DUI charge, and those situations where a person violates probation for a previous DUI case, by testing positive for alcohol or another substance.
We noted that this topic applies equally to individuals who do have, and those who do not have, any kind of alcohol or substance abuse problem. Our discussion led us to the stark realization that more understanding and appropriate treatment is given to a murderer (think of the convicted killer of John Lennon, and the guy who shot President Ronald Reagan) or serial killer than a DUI driver suffering from anxiety or depression.
Now, we’ll shift our perspective a bit to that of the clinician. As a Michigan DUI lawyer involved in ongoing education at the graduate level in addiction issues, and with an undergraduate degree in psychology, this whole topic hits a nerve with me. I feel compelled to do more than just play the role of “DUI lawyer” in this type of situation, and because of my background, I am uniquely able to understand the larger dynamic at play when a DUI client presents with an underlying mental health issue. What’s most alarming is that huge numbers of people in our modern society have to deal with things like ADD, anxiety or depression, but this seems to be overlooked by the court and probation people assigned to “handle” DUI cases. The point I’m making is that the presence of these conditions is not a small-scale phenomenon. You’d be hard pressed to find a family without some history of one of these conditions.
About the best thing a court can do to someone who has any kind of mental health issue, regardless of whether or not the person has a co occurring alcohol (or drug) problem, is to make sure the “right” therapist treats him or her. By “right,” I mean someone who understands co morbid substance use and abuse issues. Sometimes, this isn’t an issue because a person may have his or her own therapist. If someone does not, then it can take some work to find the “right” person, and even then, the therapeutic relationship begins somewhat precariously, with the knowledge on both sides that, because of the court’s undeniable presence and role, it’s a bit like an arranged marriage.
From the clinician’s side of things, it is frustrating to have to send reports to the court about a client’s progress, and to know that what is absolutely, everyday normal in the therapeutic world, namely, that a client will “slip” and have a drink, or use, is cause for punishment for a court-referred person and that such a person can actually be sent to jail. In other words, a person who is not on probation will work through his or her problems with the therapist and report an episode of drinking, or using, without fear of being punished. Progress, in the clinical sense, and in the real world, typically involves two steps forward, one step back, three steps forward, one step back. Very often, that step back can be a drink, or an episode of using. It happens; this is expected and understood as a normal part of getting better. Every therapist is intimately familiar with this, but that knowledge doesn’t seem to make it through the courthouse doors…
There is no room for “normal” in the judicial world. Instead, the court system expects a person to get better in a manner that no one really does. One slip, and you’re in trouble, even though “slips” are part of the whole process of getting better. For anyone facing a DUI or who is on probation, the course of “getting better” is expected to be perfect and problem free and extraordinarily different than it is for everyone else. Can you imagine a judge ordering a cancer patient to undergo chemotherapy, and then, if it’s later reported a few months later that the tumor that was previously shrinking suddenly enlarged a bit, deciding to punish that person? As crazy as that sounds, it’s really no different than what the court system does when a person is on probation for a DUI and has an underlying ADD, anxiety, depression or mood disorder issue has a slip and drinks, or uses.
Seeing this, and hearing the frustration of practicing clinicians, I realized that I had to bridge the gap between these two worlds. Taking up where my undergraduate degree in psychology left off, I began the formal study of addiction issues at the post-graduate level. This enables me to speak the language of the clinician as well as the language of the lawyer. I cannot blame any lawyer that doesn’t know better, but I am certainly aware that any kind of probation violation for a positive alcohol test provided by a person with any of the kinds of underlying issues we’ve been discussing can amount to a misguided attempt to punish a person for conditioned behavior that is often beyond his or her control. You simply cannot punish an illness into getting better.
In the past, it was not unheard of for a clinician to occasionally “forget” to report a client’s slip to a court, but that has become far less a possibility now that outside companies are doing most of the monitoring and compliance testing. Clinicians are generally not happy with any of this, and hate being seen as “siding” with the court or Judge. By their very calling, clinicians are healers, not employees of the criminal justice system. They want to build an effective therapeutic relationship with a client, and that becomes difficult if the client sees the therapist as part of, or somehow in “cahoots” with the probation officer and/or the Judge. A good therapeutic alliance involves trust, and if the client thinks the therapist is part of the whole court “thing,” then such trust is hard to build. Hopefully, with time, a client will come to understand that even though the court may mandate seeing his or her therapist, the therapist really wants to help the client. Just as a painter paints, and a builder builds, a therapist tries to help someone get better.
In the courtroom, my job is to really to hold all these things in check. In a DUI case, when a Judge is convinced, for example, that attending multiple AA meetings per week is the best and only way to help a person, I have to step up and be the foremost expert who points out that AA is not effective for 2 out of 3 people. Rather than blubbering some kind of ill-formed objection to the effect that my client doesn’t think AA is necessary (and that kind of argument never flies), I remind the court that modern research provides overwhelming empirical validation that 2 of the most effective ways to help a person with his or her drinking are “brief interventions” and “cognitive behavioral therapy.” Then I have to explain what all of that means, but at least I have the specific education to do that. If there is a probation officer in the courtroom, whatever he or she has previously said, or wanted to say, they will usually been effectively silenced by this time. In all subjects, ignorance is a kind of darkness, and knowledge acts like a light. Most people quickly recognize that when they see it.
After having pointed out to the Judge that sending someone to jail is the about the most ineffective of all possibilities to help him or her get better (and, unfortunately, about only tool of any significance at his or her disposal), the clinical complexity, meaning reality, often becomes clear. At this point, I can usually persuade the Judge to refer the matter to a more appropriately skilled therapist, at least for further evaluation. The irony here is that even though this usually works, the Judge is still left with nothing more than the threat of jail to get someone to comply and stop drinking. There is only so much patience to be coaxed from any Judge, no matter how sympathetic or understanding, so at this point I have to sit eyeball to eyeball with my client and play a combination of 3 different roles: lawyer, clinician and enforcer. I have to get the client to equate drinking with getting locked up. In psychology we call that “conditioning.” At the point where I’m having that conversation, it’s called a “reality check.”
There is, of course a lot more to this. We have hardly scratched the surface of this extraordinarily deep subject in this article. For all that could be said, I can close by simply pointing our that I enjoy having the specialized training that allows me to straddle these diverse fields, and I especially enjoy putting my skills to work for people who would otherwise get left behind when no one else in the courtroom has any real idea of what’s going on, how to deal with it, or how to do anything really helpful. That’s not to say that I’m the only intelligent person in the building, but if any of this is relevant to your legal situation, I’m certainly the most useful.