Michigan Criminal Defense Lawyer Blog
In a prior article about women’s considerations in a DUI case, I noted that there are certain issues brought to the table just because the person facing the DUI is female. In this article, I want to take the same approach and look at how a DUI case can be both very similar and yet very different when the person charged is gay. To be clear, I don’t profess any special expertise here beyond considerable experience representing members of the gay community and just knowing that there are at least some unique considerations involved when the person facing the DUI is part of that community. If there is any editorializing to get out of the way, it is probably that I have absolutely no hesitation in counting gay people amongst my professional circles as well as amongst my friends and people that I love very much.
One thing that makes me unique is that in addition to just being a DUI lawyer, I bring a clinical education into the mix, and I use that to help my clients produce better, meaning more lenient outcomes, in their cases. An important clinical reality that has significant implications when the person facing a drinking and driving charge is gay is that they LGBT community is understood to be (and is often self-described) as being “at risk” for alcohol and substance abuse problems. It is beyond the scope of this article to do more than a cursory examination of the etiology of this, but it doesn’t take a rocket scientist to figure out that being gay can certainly give rise to a lot of emotional stress that wouldn’t be there otherwise. Consider my caveat at the very outset of this article; even I felt a need to clarify my position for anyone with what I would describe as a “narrower” worldview.
In theory, the world shouldn’t have any problem with a person’s sexual orientation, but we know that’s far from the case. Indeed, the whole idea of “coming out” incorporates the reality that the world is often judgmental and not accepting. It is against this backdrop that individuals have to come to terms with their sexuality. For a gay person, this can be incredibly difficult. If people are known to drink after a hard day’s work, how many times greater is the internal emotional turmoil from being gay in a majority straight world? Even if one’s friends and family are all wonderfully supportive, all it takes is an overheard comment to remind someone that ignorance (if not homophobia), is/are alive and well. And then there is the Fox “news” channel and the whole right wing of the Republican Party…
Beyond this, it has long been the case that because of intolerance, gay people have socialized together in places they felt “safe.” In particular, this kind of marginalization led to the existence of “gay bars.” In a strange way, a less than tolerant public could and did tolerate certain establishments catering to a nearly exclusively gay clientele. Whatever other considerations might be involved, there is a certain risk inherent in the very idea that, for any population, one of its few safe places to mingle is a bar. There is an old AA saying that applies here: “Hang around the barbershop long enough, and you’re going to get a haircut.” Well, hang around the bar long enough and you’re going to drink. You don’t need to be a card-carrying member of MENSA to be able to connect the rest of these dots.
Because my entire practice revolves around DUI cases, from handling DUI charges to restoring driver’s licenses for people who have racked up multiple DUI’s and have thereafter gotten sober, I see people’s relationship to alcohol at a few distinct points along the continuum that connects normal drinking to inveterate alcoholism. In DUI cases, I see individuals for whom the charge is merely an instance of bad judgment, but I also see people for whom a DUI (including 2nd, 3rd and even subsequent offenses) marks a point where his or her relationship to alcohol is problematic. This includes people who are at the earliest stages of a drinking problem and those at the desperate end of a drinking problem, along with everyone in-between.
In the context of my driver’s license restoration practice, I ONLY see those people who have struggled with and overcome a problem with alcohol. In many cases, a gay client will relate that part of his or her earlier struggles involved dealing with his or her sexual orientation. In plenty of cases, a person will literally cry as he or she relates how the process of getting sober meant coming out to his or her family, and how (fortunately, in most of the cases I see) the family rallied to support. I cannot pretend to have walked in those shoes, but at least amongst my sober clients, the vast majority who are gay have found acceptance amongst his or her family, and that certainly helps on the journey to sobriety. The process of getting sober requires a rather large-scale catharsis, and one of the admonitions of AA that applies to anyone trying to unburden him or herself is “To thy own self be true.”
In the DUI world, one would think that the single most important part of any case that cannot be beaten or otherwise dismissed comes on the day of sentencing, when the Judge decides punishment and what is going to happen to the offender. The truth, however, is that the sentencing phase is far more a formality wherein the Judge simply adopts, as in follows, the legally required written sentencing recommendation forwarded by the probation officer. In other words, it is this sentencing report that is the most important component in a DUI case because the reality is that Judges almost always follow these recommendations very closely, if not to the letter. This requires some explanation…
By law, before a person can be sentenced in a DUI case, he or she must undergo a mandatory alcohol screening, meaning that he or she will fill out a written “test” of sorts, and will meet with a probation officer for a background assessment. The probation officer will gather biographical information about the person to learn if he or she is carrying any emotional baggage from the past into the present; was the person abused or neglected as a child; did he or she have a rough childhood? Any of a million reasons could give rise to conscious or unconscious turmoil that could lead a person to drink as a coping mechanism, or for some kind of self-medication. Quite independent of either an ideal or a chaotic past, a person’s current life situation could, in some way, be difficult for him or her. It doesn’t matter what anyone else thinks, if you or I feel anxious, or otherwise feel like our lives lack stability, then our feelings aren’t just feelings, they are facts.
The written alcohol-screening test results in a numerical score. That score (higher usually means more likely to have or to be at risk to develop an alcohol problem, while lower typically means the opposite), coupled with the information obtained by the probation officer about the person (including his or her background), is used to generate the written sentencing recommendation that is forwarded to the Judge. Think about this for a moment; what really matters most in this equation is the impression and opinion of the probation officer. In a very real way, he or she is the “key.”
While probation is not known for being an experiment in liberal progressivism (most probation officers have a background in criminal justice), I am happy to report that I have never encountered any overt negativity regarding a client’s sexual orientation. This is not to say that it doesn’t exist, but rather that to the extent it does, I have never seen it, and that is a good thing. That said, the mere lack of hostility doesn’t necessarily translate into any sense of real understanding, and that can be, even in the most benign sense, an expensive and unfortunate oversight.
In the clinical world of counseling, increased attention is finally being paid to the idea of cultural competence. This is a huge concept, but the boiled down essence is that one has to understand what makes a particular group or culture different, and what applies to one group may not apply to another. This is a step forward from the well-intentioned notion that “we are all human beings, and we all basically want the same things.” There are specific value differences amongst various groups that make dealing with those groups different than dealing with others. To just lump everyone into a concept of “sameness,” while perhaps done will no ill intent, is to deprive a person of his or her identity. When a black person and a white person work together, they may very well like each other, and the white person may think he or she is being politically correct to ignore their racial differences, yet what winds up happening is that he or she denies, in a sense, the other’s experiences as being black. Sure, we’re all human beings and, in many respects, we do all want the same things in life, but our experiences are different, and those experiences can define us. Overlooking them with the intention of pretending there are no differences almost deprives a person of a claim to his or her uniqueness and identity.
How does this apply in the legal world, where the most familiar mascot is a blindfolded woman holding scales? If the system is truly blind, then there is no understanding to be had for the additional difficulty a person faces just because he or she is gay. If the system looks too closely, however, it may “find” that being gay is in itself a source of stress that can be seen as a contributing factor to a potential drinking problem. And make no mistake about it, the court system is poised to see just about everyone facing a DUI as having or being at risk to develop a drinking problem above just about everything else.
There is no magic answer to be found, nor is there one particular, magical approach to take when the person facing a DUI happens to be gay. It is important, however, to be aware of how that can impact his or her case. In some of my more recent DUI articles, I have pointed out that that the best outcome in any DUI case is achieved through the careful management of time, science and perception. If the gay community is known to be at risk, then we must manage the perception of that risk. If it is science that tells us that gay people are at increased risk for alcohol and substance abuse issues, it is also science that provides us with the screening instruments used to assess that risk. Here is where I can help well beyond just being a “DUI lawyer.” I know this science; I have formally studied it at the post-graduate level, and I bring that clinical training to bear to make sure my client understands the nuances of the alcohol-screening test he or she will take. I make sure my client avoids being perceived as having, or being at risk to have a drinking problem that isn’t there.
When we think about perception, it is helpful to recall, for example, that it has been long recognized that about the highest risk group to get in trouble are younger, unemployed single males. When you compare this group with, for example, middle-aged, employed married women, the contrast is rather stark. For the most part, being in a relationship is seen as a stabilizing factor. Short of Bonnie and Clyde, and with the exception of those relationships founded on mutual substance abuse (i.e., drinking buddies or fellow drug users), most people pair off with an intention (even if subconscious) to succeed and thrive as a couple. This is why we call them “partnerships.” This has no more or less application to either sexual orientation, yet the larger society inherently recognizes heterosexual couples as legitimate. Think of the opposition to gay marriage and we can see that, as far as things have come, they haven’t come nearly far enough. The legal system contains every bit as much conservatism and liberalism and everything in-between as society at large. Even amongst those well meaning folks who have no personal avarice toward members of the gay community, non-heterosexual partnerships may be seen as something “less.”
It is the perception of this situation that has to be managed. Exactly how really depends. Still, it is a fact that when one partner in a relationship gets a DUI, it affects both parties. It affects the household finances. In my driver’s license restoration practice, an important inquiry in just about every case is whether the person (who must be able to prove that he or she is in real recovery) lives in a home where alcohol is kept. Supportive families don’t have alcohol in their homes if a member is in recovery. As one client of mine put it, my family is there to support me, not tempt me. That kind of support comes independent of anything else about the person. While it may not be possible to change the worldview of a conservative republican, he or she can certainly grasp the idea that a person has good support at home. If someone goes home to concern, love and an open offer for help, that stands in stark contrast to some young, single unemployed fellow who goes home to a party house full of roommates whose idea of long range plans focus on where to party this coming weekend.
Yet none of this is to say that a person’s sexual orientation needs to be made an issue in a DUI case. Like anything else, I will use whatever I can to my client’s advantage, and I will direct attention away from anything that isn’t helpful. That’s managing perception. Still, for the person facing the DUI, his or her sexual orientation may play a role in their DUI case. It is important that a person be treated the same (“we are all human beings…”) as well as recognized and valued for those things that define him or her. As we conclude, I am reminded of line I once encountered that humbled me as it made me laugh: “Yes dear, you are special and unique – just like everyone else.”