Michigan Criminal Defense Lawyer Blog
In my role as a Michigan DUI lawyer, I handle a lot of 3rd offense (felony) drunk driving cases. Within some of the DUI sections of my website, I examine the importance of examining and challenging the evidence as well as reviewing the video, if any, of the traffic stop and the field sobriety tests. The hope is to get a DUI charge “knocked out” if at all possible. In some of my DUI articles, I explain how, in some cases, a 3rd offense felony DUI charge can be reduced to a 2nd offense misdemeanor by way of a plea bargain. Those are all relevant and valid considerations in any drunk driving case, but there’s more to it than just that.
In this article, I want to step away from all the “what if” kinds of questions, and direct the focus to what should be done in those cases that aren’t likely to be thrown out of court for defective evidence and the like. Although this article is directed to someone facing a 3rd offense, it also applies pretty much equally to 2nd offense DUI charges, and even some first offense drinking and driving charges (particularly High BAC cases), as well. Here, we’re going to survey the role of treatment and counseling in a DUI case, and how it can be used to make your legal predicament better.
This is important, because if you’ve already racked up 2 prior DUI’s, then you know something about the realities of DUI cases being easy to beat. Look, I’m in business to make money, but the cold, hard truth is that most DUI charges don’t get tossed out of court. If you are facing a 3rd offense DUI charge, or any DUI charge for that matter, your plan better include more than just hoping it gets dismissed.
The point I am making is simple, but also important for anyone dealing with a Michigan drunk driving charge: Every possible angle should be explored, and every possible thing done, to try and beat the charge, but even on the chance that won’t happen, you better take the right steps to minimize the consequences (particularly jail) that you potentially face. In terms of the lawyer you hire, there are 2 kinds:1. Those who make things happen, and, 2. Those who watch them happen.
This means that, ultimately, you and the lawyer you hire can either actively go about making things better, or either or both of you can just passively stand by and deal with the consequences. Unfortunately, most of what I see happen in other lawyer’s cases is way more passive than not, and only marginally effective, at best. Moreover, while being proactive is important, action for the sake of action is just wasted energy. Instead, the goal is to work smart, and not just hard. Of course, talking is easy; it’s the doing that’s much harder. Figuring out the “right” thing to do in any case requires assessing an ever-changing mixture of variables at various points as the case progresses.
Consider this: A new client comes into the office with a 3rd offense DUI charge and a court date in about a week. The person is pretty sure that he or she should get into counseling, and figures the sooner the better. At this very early stage of the case, before I’ve had a chance to examine any of the evidence, I’d usually advise hold off a little bit, at least until I can get the police report and patrol car video. If there is a realistic chance of beating the case, or getting the charge knocked out, it is most often discovered by reviewing the evidence. Accordingly, gathering and reviewing that evidence is probably a smarter first step. If the case is weak, then we can look at treatment (or not) beyond the context of how it can make things better in his or her DUI case. On the other hand, if the case is solid, then knowing that will become a factor in the options we consider.
Undeniably, an early step into the right kind of counseling can be very important in terms of how it affects the outcome of a DUI case. We have to take an honest look at the entire spectrum of available counseling and treatment choices. Here is where I bring more to the table than just being a lawyer, or even a DUI lawyer. Given the concentration of my work (DUI lawyer and driver’s license restoration attorney), the development, course, and recovery from a drinking problem is something that I deal with every single day. To be the best at what I do, I must understand alcohol and alcohol problems better than anyone. I need to be the foremost expert in the courtroom and the hearing room when in comes to the diagnosis of and recovery from alcohol use disorders. To meet that goal, I am actively and formally engaged in the post-graduate level study of addiction issues through the University of Detroit Mercy. This enables me to understand these things from the clinician’s side of the table as well as the lawyer’s, and speak the language of both the lawyer and the clinician.
A real world benefit of all this is that it allows me to make sure we don’t just recycle a reluctant person through the mill of counseling he or she doesn’t like, and then add AA meetings they hate on top of that. That’s not to say that those things aren’t effective. In fact, multiple studies have confirmed that the right combination of counseling and early entry in to AA produces the best long-term outcomes in terms of sustained abstinence from alcohol. The problem is one or both of those things just aren’t a good fit for some people. You might like my favorite dish at my favorite restaurant, but, then again, you might not. If we all responded to the same things, then the paint store would sell far fewer colors, and we’d all like the same flavor of ice cream.
As a lawyer, it is important to know how counseling and support groups can help a person in a DUI case, as well as in his or her life. However, if all a lawyer knows is just “counseling and AA,” that’s not good. Instead, in order to help the client find something that works (and, early on, something that “works” might not be anything more than he or she simply doesn’t hate), it is critical to understand the whole panorama of recovery processes. Things like CBT (cognitive behavioral therapy), REBT (rational emotive behavioral therapy) are emerging treatment protocols that have been proven highly effective ways to treat drinking problems. Brief interventions have proven surprisingly and remarkably effective, in stark contrast to the “traditional” approach that longer and more intense is better.
Here’s the real problem, and it’s a big one: In the treatment world, there is a concept called “diffusion.” This describes the time it takes for new treatment methodologies to go from the research labs to the offices of real world counselors who actually do the work of helping real people get better. Think of this in the same way you’d think of a new drug that has to go from testing, to FDA approval, and then to your doctor’s prescription pad and pharmacy shelves. Normally, it takes about 5 years from empirical validation (being proven by studies) of a treatment methodology to its implementation (use) in a counselor’s office near you. That’s the good news.
The bad news is that the entire treatment community knows that the legal system as being at least a decade behind that curve. Note that I said “at least.” In other words, it takes 10 or more years before the updated treatment methods of the modern substance abuse counselors are discovered, recognized and used by (“diffused” into) the judicial system. This is like the video world, where DVD gave way to blu ray, which is now being quickly replaced by streaming high-def media. In this world, the court system is still at the VCR level.
This narrow understanding of how people develop, and, more importantly, get over an alcohol problem will directly affect you in a High BAC, 2nd offense or 3rd offense DUI case. Michigan’s habitual offender laws require the court to order anyone with a 2nd DUI into counseling. That same law applies to any 3rd offense in a lifetime. And make no mistake about it, there isn’t a Judge alive who doesn’t think that anyone with a 2nd DUI, much less a 3rd DUI, has a drinking problem. Most Judges are moving to the ideal that a high BAC score is also indicative of a problem. This is where I have to step in and clarify things, because there is no clinical truth to that. A single high BAC result is NOT clinically significant, and it is important to not let a person get ordered into unnecessary counseling or treatment for just that reason. Here we see a big difference between being active or passive; you either make things happen (in this case, prevent them from happening), or you sit by and watch and deal with what happens.
This is another way in which I separate myself from the pack of lawyers looking to be retained in DUI cases. If you get picked up for a 2nd DUI, it is statistically rather likely that you have at least a “troubled” relationship to alcohol. If you are arrested for a 3rd DUI, it is a just a “given” that you have a drinking problem. Beyond that, it is a guaranteed certainty that you will NEVER find a Judge who thinks differently. It is imperative that a lawyer addresses this fundamentally important issue up front. The practical problem is that way too many lawyers are afraid of being so candid with a potential client at the risk of scaring him or her away. If you want to find someone that just agrees with you, you can do that for a lot less than the price of a lawyer. Even if you don’t think your drinking is problematic, you need to understand how the person that matters most in all of this – the Judge – will perceive it. Being afraid to talk candidly about this doesn’t help anyone, and I won’t waste your time or mine with such nonsense. We’re either going to make things better, or talk in circles…
As I go over this with a client, I have to consider how to help my client in his or her DUI case, but not at the expense (and the wrong choices can be very expensive) of forcing him or her into treatment that they hate, and from which no benefit will be derived. I also need to be able to educate the court as the efficacy of any treatment program we choose beyond the traditional counseling and AA route. The good news is that I have a clinical knowledge to do this because of my specialized training that, at least in DUI cases, “dovetails” with my legal skills. The real balancing act here is to make sure the client doesn’t wind up with treatment he or she doesn’t need, or simply dislikes, while making sure that the person does something concretely beneficial to the outcome of his or her DUI case.
Beyond treatment choices, there are all kinds of support group alternatives to AA. There are, of course, the “other” 12-step alternatives like Secular Sobriety and Women for Sobriety, but there are plenty of other programs, as well. Some just “meet” online, and others require no kind of meeting. These are best presented to a court through and in combination with a counselor who is well versed in modern treatment modalities. As much as it is understood that the entire judicial system is living in yesterday, there is no shortage of counselors whose idea of continuing education is doing the same thing over and over again. We can joke about this, but I have actually had plenty of clients who have met with a middle aged male counselor (ponytail and all, circa 1992), who will proudly declare that his more than 20 years of sobriety began with 90 AA meetings in 90 days, followed by meetings at least weekly thereafter, on top of intense individual and group counseling. This kind of well-meaning soul may be just the guy for some people, but certainly not the guy for a lot of others.
If you aren’t proactive, and just wait to get to him through court order, then you’re stuck with him…
Yet for all of this, sometimes we learn something works – or not – after trial and error. If something we first try isn’t a good fit, or just doesn’t work, then we have to be flexible enough to pull the plug on it and regroup. This, again, is where I can be of more help than the average lawyer. I am glad to meet and go over these issues with my client. While I want to make sure we produce the best outcome legally possible in the case, I also want to help my client beyond just the scope of his or her DUI. I don’t spend over $12,000 a year on graduate school tuition because I’m self-absorbed and greedy. Whatever else you get from my blog or my website, you can take this to the bank: The best reward I ever get is knowing that I played some role in helping a person get better. Being part of helping a person turn his or her life around provides the ultimate job satisfaction.
To do these things, we need to be active. We need to assess things, then reassess them in light of every piece of new information we get, and ultimately devise and revise a plan of action. If you simply wait for the court system send you to counseling and treatment, you will almost certainly be shoved into a one-size-fits-all program that has no capacity to “understand” you, much less provide you with any individualized help. By waiting for the court to do it’s thing, you run the risk of much harsher punishment. Whatever else, the steps we take, while legitimately designed to help you, are also undertaken for the explicit purpose of making sure you get punished “less” by the judicial system
In the final analysis, if you’re facing a 3rd offense DUI (or any offense, for that matter), you can either step up and make things happen, or stand by and watch them happen. Call me when you’re ready to make things happen for your advantage.