Michigan DUI Charges and the Alcohol Bias (Summary Version) – Part 2

In part 1 of this article, we began a summary overview of the alcohol bias in the court system. This 2-part article is meant to both summarize some of the key points of its 8-installment big brother, and, hopefully, convince the reader that there’s enough to all this to make it worth his or her time to read the larger piece. The alcohol bias underlies everything about Michigan DUI cases, and there’s no way to even touch upon its key aspects in any shorter format. The alcohol bias – the idea that most DUI drivers either have, or are at risk to develop a drinking problem, and should, therefore, be treated accordingly – is really the reason the DUI process in Michigan plays out as it does.

imagesWe left off, in part 1, by noting that the alcohol bias makes people in the court system “see” an alcohol problem even where there isn’t one, and to magnify any risk factors or actual problems that do exist so that they’re perceived as worse than they actually are. This, in turn, gives rise to the “better safe than sorry” mindset that is pervasive within the court system. Although it’s not a big deal to send ever 1st offender for some kind of preventative education, the alcohol bias has consequences well beyond just that.

In a certain way, the alcohol bias is almost self-powering. While there are plenty of things that can lead a Judge, probation officer, or anyone in the court system to “see” drinking problems, the ugly reality is that they encounter very little to ever contradict that notion. For example, the number of people who go to trial and successfully defend against a DUI charge in Michigan is so low, you have to read the numbers twice to believe them:

According to Michigan’s legally required Annual Drunk Driving Audit, there were more than 31,000 people arrested for a regular DUI in 2018. Out of all of them, only 48 people went to trial and won.

Likewise, in 2017, more than 31,000 people arrested for a regular DUI, and only a mere 31 of them beat the case at trial.

That’s less than .2% (less than two-tenths of one percent). You have to really say this out loud it to feel the smallness of the number – less than zero-point-two-percent.

In other words, Judges don’t see many people come to court falsely charged with a DUI. Instead, as the numbers show, most people who walk into court facing an OWI charge walk out of court having pled to some kind of DUI charge. Some attorneys have great marketing campaigns that dance all around this truth, but what’s linked above are the REAL numbers, taken from the legally mandated Annual Drunk Driving Audit conducted by the Michigan State Police.

Beyond that, Judges often have a front-row seat to drunk driving arrest videos. Here, I have to be a a bit more candid, and a lot less than diplomatic: it makes my job all the harder when other clueless lawyers stumble into court and rather ineptly try to challenge evidence in a DUI case and play the arrest video for the Judge, which, whatever else it may or may not reveal, almost always shows the person who was arrested to have been clearly intoxicated.

A better lawyer will know to only use selective parts of an arrest video. Unfortunately, many lawyers think that “more is better.” Instead of using carefully selected portions of the video when challenging something like a traffic stop, and stopping it right at the point where the driver pulls over, they’ll let the whole thing keep playing, so the Judge sees an intoxicated driver every bit as much as, if not more than, whatever evidentiary defect the lawyer was hoping to show by playing the video in the first place.

Of course, there is an ugly reality we must acknowledge here. For as much as a DUI can just “happen,” and nothing more comes of it, plenty of innocent people do, in fact, get killed by drunk drivers.

As heart-wrenching as it can be to hear about someone losing their life because of a drunk driving accident, it’s even worse when we acknowledge that every one of these deaths could have been prevented. Every DUI tragedy only galvanizes public sentiment against drunk driving, and that’s understandable.

Over the nearly 30 years that I’ve practiced law, the DUI process has gotten much tougher. I remember handling cases back in the day when a person could pay a fine and be done with the whole matter.

Later, people were put on probation and told they better not get caught driving after consuming any alcohol.

Fast forward 20 years, and now, every district court Judge in Wayne, Oakland and Macomb County not only issues a “no drinking” order while DUI charges are pending, but also requires that a person test at regular intervals to prove that they’re complying.

These changes have all resulted from the alcohol bias, and, as I’ve tried to make clear, what happens in court every day only serves to reinforce it. Judges just don’t see people coming into court on DUI charges, only to prove that they weren’t drunk in the first place.

No matter how you look at it, the fact is that there are only 2 kinds of people who get a DUI: those who have a drinking problem, and those who don’t.

Even if you only look at those cases that do get dismissed, it’s almost always for technical, legal reasons. My team and I have “knocked out” loads of DUI cases, but in every one of them, it was because we successfully challenged something about the traffic stop, or the way the evidence was gathered, handled, or tested. Even when breath or blood test evidence is challenged, it’s almost always because of some issued that calls its reliability into question, not because it shows the person wasn’t actually over the limit.

In other words, when a lawyer succeeds at challenging a breath or blood test, it’s because he or she can introduce enough doubt about whether it accurately or legally “proves” the person was legally drunk.

Probation officers, just like Judges, are affected by the alcohol bias. Remember, under Michigan law, the probation officer (PO) is responsible for administering the mandatory alcohol assessment test, and then must “score” it, numerically. The probation officer then compares that score to a “key” that essentially diagnoses whether a person has an alcohol problem or not, and if so, how bad it is, or, if there is no existing problem, whether the person otherwise has the potential for such a problem to develop down the road.

The mandatory alcohol screening test is part of a larger process called the “PSI,” or pre-sentence investigation. This process involves an in-person interview with the probation officer, who will gather all the relevant facts about the person’s background, prior record, if any, facts of the case, and of course, the results of the written alcohol screening test.

The end result of the PSI is that the probation officer must provide a written recommendation to the Judge regarding what kind of sentence to impose, including, specifically, what kind of education, counseling or treatment the person should have.

These written recommendations are almost always followed, if not to the very letter, then very closely, by every Judge, in every court. For everything I could say about this, the PSI sentencing recommendation is essentially the blueprint for what’s going to happen in a DUI case. To be clear, this is THE most important stage of a DUI case, and doing well here is the absolute key to getting the best (as in most lenient) outcome possible.

In the same ways that Judges see the alcohol bias reinforced by the behavior of the people going through DUI cases, and as much as they don’t really see anything to negates the bias, probation officers observe the very same things, day-in and day-out. In fact, when someone tests positive for alcohol despite being under orders to abstain while on bond, it’s usually the probation officer who brings about and handles the actual violation proceedings.

Of course, it’s ALWAYS the probation officer who handles positive-for-alcohol violations when someone gets caught drinking while on probation. And make no mistake, getting caught drinking in violation of orders to refrain is an everyday occurrence in every court.

Given that probation officers are really the people responsible for making any treatment recommendations, we should always be concerned about how the alcohol bias affects their judgment. This whole subject could fill a series of books, and is really incapable of any summary treatment, so the reader will just have to follow along as we take some pretty large hops through this part of the discussion.

A great place to land is on the issue of treatment. Since the PO is the one who recommends it, one would assume they know what they’re doing. Not only is that often NOT the case, but if you pause for just a moment and look at the big picture, you’ll begin to realize that probation officers are mostly without any kind of perspective to assess whether the education, counseling or treatment they do recommend (and, as a matter of course, that Judges order without second thought) actually works.

Instead, what probation officers “see” is that most people make it through their term of probation and do what they must.

Some don’t, however, and most often, when someone does have trouble on DUI probation, it’s for drinking.

Nobody goes back to a probation officer 5 years after probation ended to say how well (or not) they’ve done since. In other words, probation officers don’t really get to assess results of their work, except through those who fail while on probation, or who otherwise come back as repeat offenders.

This does nothing to minimize or negate the alcohol bias.

In addition, probation officers, like Judges, see a steady flow of 2nd and 3rd time DUI offenders. The inevitable conclusion, when looking at a repeat offender, is that whatever was ordered by way of education, counseling or treatment in the 1st or 2nd case didn’t work.

The upshot is that a probation officer will often think that whatever they previously recommended wasn’t enough. The next logical step is that they figure they need to be “tougher,” and that more – meaning more education and/or more counseling and/or more treatment – should be recommended in future cases.

While I’m not trying to impugn the intentions of any probation officer or Judge, the simple fact is that anyone who can recommend or otherwise put someone in jail for drinking is in the punishment business, not the therapy business.

Thus, the alcohol bias feeds itself in the criminal justice system, all the while making itself stronger.

Any person who has to go to court for a DUI better have a lawyer who is either prepared to confront the alcohol bias and deal with it in the best way possible, or otherwise stand by and get run over by it.

This is where hiring the right lawyer matters. Because we’re a Metro-Detroit, Tri-County DUI practice, we aren’t trying to hawk our services all over the state. Thus, my opinions here are not just some sly way of saying “hire me.” Any reader with a case beyond the Greater-Detroit area needs to look for a lawyer who analyzes DUI cases and the whole DUI process carefully, as I have here, rather than simply self-identifying as “tough,” “aggressive,” or, worse yet, “affordable.”

Make no mistake, the “voice” of your lawyer matters. My firm and I “sound” like this article. We’re analytical, but also practical. In my case, I bring a clinical background to the table, having completed a formal, post-graduate program of addiction studies. This is invaluable, because I understand what’s involved in the development, diagnosis, and treatment of alcohol and drug problems.

When I say AA isn’t for everyone, I don’t do that as some guy just spouting off. Instead, I do that as someone who has formally studied the spectrum of recovery processes. In my capacity as a Michigan driver’s license restoration lawyer, where the key to success is proving sobriety (we guarantee to win every license restoration case we take) I have had the retrospective advantage of listening to thousands of stories from people who have worked through a drinking problem and gotten sober, and have, accordingly, been able to learn what worked, and what didn’t.

As DUI lawyers, we have several tasks to manage. To produce the best outcome possible, we have to gather and then carefully examine all of the evidence. From there, we have to plan a defense, whether that means challenging some part of the evidence, the case as a whole, or working out the best deal possible. All of this has to be done while remaining cognizant of the alcohol bias.

Our job is to counter that bias as much as possible, so that, at the end of the day, our clients avoid as much testing, education, counseling and/or treatment as possible.

We have to make sure that those people who don’t present with any kind of alcohol problem don’t get treated like they have one, while also seeing to it that someone who does present any kind of risk to develop a problem doesn’t suffer from “overkill” by the system and get cramped into all kinds of unnecessary counseling or treatment.

In those cases, like 2nd and 3rd offense cases, where a client does, in fact, have some kind of troubled relationship to alcohol, we need to make sure he or she doesn’t just get “slammed” with either too much, or the wrong kind of counseling and/or treatment.

If you’re looking to hire a lawyer for a DUI case, you should keep these things in mind. Be a good consumer, and read around. Never be afraid to ask questions. Pay attention to how lawyers explain both the DUI process, and explain themselves.

Look for honest analysis.

If your case is anywhere in Oakland, Macomb, or Wayne County, give us a ring as you do your homework. All of our consultations are free, confidential, and done over the phone, right when you call. We are very friendly people who will be glad to answer your questions and explain things. We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700, or 586-465-1980.