Michigan Criminal Defense Lawyer Blog
This will be an article about role of relapse in a Michigan DUI case. In the previous article, we focused on how relapse can be used as an asset in a driver’s license restoration case. I noted that in my role as a Detroit area (meaning Macomb, Oakland and Wayne County) DUI lawyer, alcohol, drinking (as in normal drinking), troublesome drinking and, in the case of my driver’s license restoration practice, recovery from drinking problems, are the focus of just about everything I do, every single day. Given that OWI (Operating While Intoxicated) cases are always about drinking, and given the court system’s natural bias toward finding and over-diagnosing drinking problem in those cases, it became obvious, that to really help my clients, I needed to advance my understanding of the whole clinical world of addiction and recovery. To do that, I went back to the university classroom and completed the coursework in a post-graduate program of addiction studies. This way, when I’m next to my client, I stand as the foremost authority in the courtroom on alcohol-related things like diagnosis, relapse and recovery. In a DUI case, a relapse usually brings both good news and bad news. The bad news, of course, is the DUI case itself.
The good news is that if we can properly communicate the entirety of the situation, we can assure the court that you don’t pose a worrisome risk of re-offending, and therefore don’t need to be pounded silly with all kinds of punishment. Granted, this sounds easier than it is (otherwise every lawyer would just say what I said and everything would be just fine), and that’s why I thought it worthwhile to invest years of my life and tens of thousands of dollars of my money into a formal program of addiction studies. Much of this is relevant to 2nd offense and 3rd offense DUI charges, and is not as broadly applicable to 1st offense drunk driving cases in general, but then again, broad generalities won’t help anyone who has relapsed only to wind up facing another drinking and driving charge.
As I pointed out in the prior, license reinstatement article, the term “relapse” is often used rather imprecisely. If a person has quit drinking and then engages in a single episode of drinking, that’s called a “lapse.” To continue drinking after that first episode (an episode can be anything from a single sip to a single drink to a whole, but single day of drinking) is to “re-lapse.” Thus, a relapse is a return to more than one episode of drinking. I’ve had DUI cases that have arisen the very first time my client picked up again, and I’ve had some that marked the tail end of a long, painful relapse, as well as just about everything in-between. If you are facing a DUI after having quit drinking, it may look bad at first glance, but we can – we must – and, if I’m your lawyer – we will use your prior period of abstinence to help your case. It goes without saying, though, that we’ll have to show how the lapse or relapse not only got you to stop drinking – again – but also how and why this time, it’s for good. So how do we do that?
In the past, limitations in the understanding of alcohol and addiction issues correspondingly limited our ability to describe and talk about the nuances of a drinking problem. We can only really think in words, so limitations to our language necessarily limit our ability to think. It used to be that a drinking problem was pretty much only described in 1 of 2 ways; either you were considered an alcoholic, (a term most often used to mean alcohol dependence) or an alcohol abuser. To non-clinicians, the term “drinking problem” was used either to signify someone who wasn’t an obvious, hardcore alcoholic or as a polite way to talk about someone who was, without actually saying it. Thankfully, we’ve come a long way in the last number of years and the way we talk and think about things has expanded our understanding of the whole addiction and recovery field. While all this may be interesting, what matters to someone facing a DUI is how this can help his or her case.
This can get deep, but fortunately, we don’t have to go much below the surface to at least catch a glimpse of how this can help in a DUI case. If you tell someone that another person is facing a 2nd offense or a 3rd offense DUI charge, the listener, without fail, will respond that the DUI driver clearly has some kind of drinking problem. Now, in reality, while many of these DUI candidates are, in fact, big drinkers, some are not. Some, in fact, drink rather infrequently. “How can I be an alcoholic if I hardly ever drink?” is a question that’s frequently asked. Instead of asking that, we can skip the labels and just say, and say correctly, that however much the person does or doesn’t drink, his or her relationship to alcohol is obviously risky, both for the person caught driving and anyone he or she could have injured or killed while driving drunk. Such drinking is obviously troubled, in that sense that it has, once again, landed the person in trouble. There are 2 old sayings that really apply here. The first is used by therapists when they point out that “Anything that causes a problem is a problem.”
The second comes from AA, which has a way of packaging a lot of wisdom into a short sentence. In this case, a whole lot of discussion can be skipped when a person simply observes that “I didn’t get in trouble every time I drank, but every time I got in trouble, I had been drinking.” However one chooses to say it, the general idea is the same.
Yet it is the hallmark of an alcohol problem that the person suffering from it has a hard time seeing it, and will try to think his or her way around it. AA simply calls this denial, and while that term is accurate when you understand it in its more nuanced applications, to the person in denial it sounds more like an accusation than anything else. For some reason, it is part of an alcohol problem for the drinker to keep thinking he or she can handle it. The drinker’s natural inclination is to plan to somehow control or limit his or her drinking; to stop at 1 or 2 or 3, to stop at a certain time, or to, in some way, simply manage it. And while that can and does work sometimes, the whole idea that a person has to even think about limiting or managing his or her drinking in the first place is a big, giant clue that it is no longer normal. The reality that, however infrequently, such planning doesn’t work out as expected is confirmation that the person has passed the stage of just being a normal drinker. Would you fly with an airline that had ongoing, if only infrequent or intermittent crashes? Would you consider that “normal?”
For those who are lucky enough to come back, a lapse or relapse can be the most powerful teacher in the world. Anyone who has gone to AA and heard the first step (“Admitted we were powerless over alcohol and that our lives had become unmanageable”) knows how hard some people have to work to go beyond just saying that in order to really accept it. Acceptance of powerlessness is much easier for those who have picked up again, only to get knocked back down. The whole first step thing no longer requires any kind of belief or faith in the unseen; it’s like putting your hand on the hot stove a second time. When recovery people talk about surrender, you can be sure that no one knows surrender as well as someone coming back from a relapse.
It is this experience that we have to get across to the Judge and a probation officer in a DUI that follows a relapse. First, we must get this through to the probation officer. Skeptical by nature, some probation officers even have some clinical certification, if not training. It is here where we can run headlong into the idea that “A little knowledge is a dangerous thing.” I know all about clinical training; my matriculation in this field is rather extensive, and was done at the post graduate level. Still, I know the one fact that is, by far, the most important: The people who really know this stuff know it by experience because they work every day in the helping professions, just like I work every day in the court system, the same way the Judge and the probation officer do. In other words, neither the Judge, probation officer nor I are any kind of practicing clinicians. We can, perhaps, understand the clinicians, and maybe even speak their language, but the probation officer is a probation officer and doesn’t treat people anymore than I do.
This is huge, because it means that to make our point to the probation officer and the Judge, we need to do it through a real clinician. That, of course, means more than just hiring someone to write a favorable report. It means using a substance abuse counselor with the full compliment of disciplines at his or her disposal and who, above all else, will never sell his or her integrity. I use such experts, and, perhaps surprisingly, this class of specialist does NOT charge an arm and a leg for their services. With the right clinical help, we can put together a compelling explanation that this last return to drinking, however unfortunate, was inevitable, necessary, and most of all, was the true “lightbulb” or “epiphany” moment for you. We make clear that this is when you really got it and just knew, from the inside out, that you had taken your last drink. While other people may need to refuel on the idea that they can’t pick up another drink from the experiences of others, you have now learned that lesson the hard way, and it’s one that will never be forgotten.
I could go on, but at this point, you either get this or not. It’s the people in the court system that we have to work on to “get it” now.
When you’re facing a DUI, and even if the circumstances are ugly, I can help. Take the time to read as much as you can of what other lawyers have written. I can’t comment about what anyone else does or doesn’t say, but it should be obvious that I know this from all angles. I’m here to make things better for you. When you’re ready to call around to hire a lawyer, make sure that you call my office, as well. We’re open Monday through Friday, from 8:30 am to 5:00 pm, and can be reached at 596-465-1980.