Michigan Criminal Defense Lawyer Blog
This series of articles is about the most important part of any DUI case – the mandatory alcohol screening and pre-sentence investigation, or PSI. This is all about getting better results and a more favorable outcome if you’ve been arrested for drunk driving. When we began our inquiry in part 1, I explained that Michigan law for OWI cases requires anyone being sentence for a drinking and driving offense to complete a written alcohol screening. The results of that “test,” along with the other information gathered by the probation officer as part of the larger pre-sentence investigation itself is used to make a formal sentencing recommendation to the Judge. In the real world, that recommendation is pretty much the blueprint for what will happen to you, and the most effective and proactive plan is to make sure you are thoroughly prepared to do as well as possible during the PSI (thus procuring a more favorable recommendation), rather than just passively letting things happen and then showing up in court and trying to persuade the Judge to disregard the probation officer’s findings. Although that’s a losing idea from the outset, it tends to be, by default, the approach most widely used, perhaps because unraveling all of this takes a lot of effort. Despite the breadth of the undertaking, I did it anyway, and in doing so, have termed the whole PSI process as “the big 3,” meaning an examination of where you’ve come from (your past), where you are (your current life situation), and where you’re going (the sentencing recommendation). In part 2 of this article, we looked at where you’ve come from in terms of an inquiry into your past. Here, in part 3, we’ll look at where you are, meaning how your current life situation is assessed.
The whole point of a PSI, meaning pre-sentence investigation, is to assess a person to determine what kind of counseling, education, treatment and, yes, punishment, he or she should receive after a DUI in order to minimize the chances of him or her ever doing it again. As we saw in part 2, a person’s background, meaning the “where you’ve come from” part of what I call the big 3 of the pre-sentence investigation – where you’ve come from (your past), where you are (your current situation), and where you’re going (what should happen to you) – involves a detailed look at where to whom you were born, where and with whom you were raised, the important things that did (or did) not happen in your childhood, all with an eye to whether or not you are dragging emotional baggage and unresolved “issues” from your past into the present. As much as you may or may not be negatively affected by your past, and as dreadful or nurturing as it may have been, we all live in the present (although most of us know people who are kind of psychologically “stuck” in the past). Accordingly, an equally important part of the PSI assessment is to determine where you are in your life right now. Obviously, a big part of that is that you in the midst of dealing with a drunk driving case. In this third installment, we’ll look at how significantly your current life status impacts what will happen to in your DUI case.
Your status is important. In the real world, there is a kind of life currency called “social capital” that separates the “haves,” at one end, from the “have nots,”at the other, and is why things are different for the rich and famous than the poor and homeless We all have varying degrees of social capital, and it doesn’t entirely relate to money, either. Neither a Bishop nor a Police Chief are “rich” people, but they have a status (and therefor a certain degree of power) far above the ordinary. And while most of us are not rich and famous, chances are, if you’re reading this (as in on your own, or a work computer, tablet or smartphone), you probably have a good job to be able to afford and use these devices, and simply because you’re reading one of my articles, you’re almost certainly something of the analytical, cerebral type. My typical client has a good career and a good life, and therefore has much to be fearful of losing in the face of a DUI.
The good news is that, with proper legal guidance, he or she should not lose any of it, but the irony is that’s because, at least in part, it’s there to be lost in the first place. The most brutally honest way to put it is this: The poor, unemployed chump who can’t even afford his own lawyer and has to be one of the public defender’s 15 or so cases for the morning just doesn’t present (and ultimately doesn’t do) as well as the person who has a good job and can afford a better lawyer. This is not to imply, however, that a person can “buy” his or her way out of a DUI. In fact, that’s not possible, which is precisely why you often do hear about so many of the rich and famous getting popped for drunk driving. The difference between what happens to them and what happens to those getting stuck with a court-appointed lawyer is measured in terms of the result, meaning outcome of the case. In this sense, your status in life really does matter, and while you certainly don’t have to be rich or famous to get the best results in a DUI case, you do need the ability to find and hire much better counsel than the public defender. As I noted, we all have social capital; the more you have, of course, the better, but at the end of the day, and no matter how much of it you do have, social capital itself is merely one facet of the “where you are” component examined in a PSI.
Let’s use a hypothetical situation: Assume that Comfortable Carl grew up in a loving, supportive and otherwise wonderful home. At no point in his life did he ever suffer any traumas, and was never threatened by nor the victim of any emotional, physical, psychological or sexual abuse or neglect. He married Loyal Lisa about 11 years ago, and they have 2 children. Within the last year, because they could afford it, they purchased a new, bigger home for their growing family. A few weeks ago, a memo came down at Lisa’s work that her company was being bought by a competitor, and that there would be layoffs, but none were identified. Lisa has been with her company for 13 years, and she makes nearly $60,000 a year. It would be hard for her to quickly find a replacement job that paid nearly as much if she was let go, and there has been some stress in the home lately over how they’ll manage the bills if that happens. On top of that, Carl’s mother’s health has been deteriorating over the last few years, and Carl, despite working a lot of hours, seems to be the one caring for her the most out of his 2 other siblings. This has taken kept him out of the house a lot more than either he or Lisa would like, but he doesn’t seem to have a choice.
If either Carl or Lisa was arrested for a DUI and was completely candid about all this stuff going on, the situation would likely be perceived as a major source of instability and/or volatility in their lives. Perhaps these things provide, to each of them, a reason or reasons to use alcohol to cope, or to self-medicate the stress. Moreover, the urge to drink for relief may very well take place subconsciously. In fact, it’s rather likely that if either Carl or Lisa was using alcohol to reduce stress, they wouldn’t be consciously aware of it, like when someone clicks a pen nonstop without realizing that they’re annoying someone around them. And here’s the thing in the context of a PSI: It does not matter whether Carl or Lisa’s DUI was completely unrelated to what’s going on in their lives. Perhaps, instead of being stressed out, they both meditate, do yoga and workout. Maybe the DUI just “happened.” However, to a probation officer doing a PSI, it would seem that the potentially stressful life circumstance(s) they are dealing with could be a possible underlying factor in their DUI, and that’s enough to set off all kinds of alarm bells. Worse yet, the more Carl or Lisa insist otherwise, the more it will seem that they do have issues. It may very well be that that Carl and Lisa are quite alright with what’s going on, and that the drinking and the DUI had nothing to do with it. The point here is that it is really the appearance of a possible connection between life stressors and drinking that matter.
Over the last 25-plus years of my career, I’ve handled just about every DUI situation you could imagine. Plenty of those have involved a person going out for the night after a disagreement with his or her significant other. In fact, in the DUI world, it is not uncommon to have someone explain their bad judgment in the context of blowing off a little steam because of some trying situation or other. And that’s the thing; it doesn’t matter what stressors underlie a drunk driving. In other words, if everyone agrees that a person is going through a tough situation, then, in the face of a DUI, it looks all the more like he or she lacks the appropriate coping skills. By contrast, even if the reason for a DUI is that some old friend rolled into town and things just got carried away, then it looks like a person lacks a good sense for self-regulation. That’s really not any better. The takeaway here is that we don’t want a DUI to look like mere drunken partying gone wild any more than we want it to be perceived as a method for coping, or self-medicating due to stress.
Beyond what I’ve just described, there is whole universe of relevant inquiries and factors that are part of the “where you are” facet of a PSI. I was thinking, the other day, that even if I wanted to, there would be no way to teach this to a younger lawyer without years and years of direct instruction. While some of this involves common sense, some of it seems to require a complete suspension of it. In other words, doing well in your PSI sometimes requires being counter-intuitive. In terms of information you’ll provide to the probation officer, most courts will have you fill out paperwork that asks about your background and current life situation. Depending on the court, there can be more or less questions, but even those forms that have fewer tend to probe rather deep. Most people don’t get this at first, but almost all of the forms get into your financial situation, including income and debt. I’m often asked about this, because people will understandably fear that if they look like they have money, they’ll get socked for higher fines and costs. I have to explain that the reason for this line of questioning has nothing to do with what you’ll wind up paying to the court, but rather goes to whether or not your current financial condition could be a source of stress. The hapless soul who makes him or herself out to not have any money, in order to mistakenly try and save some doesn’t look quite as stable as the person for whom money is not a critical problem, and therefore not a source of stress. And no, looking good financially does NOT result in higher fines and costs.
As I noted in the preceding paragraph, there is an almost infinite number of factors that make up a snapshot of where you’re at in life at the moment. Key, of course, is the idea that any of them could be a source of instability or volatility. The inquiry here does not involve deciding if something is, in fact, a problem, but is rather limited to a “look-see” to merely determine if it could be a problem. This cuts both ways, because a person may be able to effectively deal with a particular situation that would stress someone else to the limit (imagine a close family member who is dying), but its mere presence will raise a red flag. On the flip side, a person may appear to have no obvious sources of instability, stress, or volatility in his or her life (think of someone who is suffering from depression, yet by all accounts, “has everything”), but if he or she reports such feelings, then it will appear that there are factors that may underlie his or her risky drinking behavior that led to a drunk driving arrest. Again, it is not that probation is going to figure all of this out; instead, they’ll just look for any red flags, and if they find them, send the person out for help. My job, of course, is to make sure my client really understands how every single thing he or she says (and doesn’t say) can be perceived and figures into his or her PSI recommendation.
In that sense, the client and I have to kind of play a game to see how everything can be “twisted” and taken the wrong way. The goal here is to make sure that your assessment by probation does not result in any unnecessary classes or counseling. It’s better to be safe, rather than sorry. I don’t understand how anyone can overlook that whole PSI thing is, by far, the most important step in a DUI case in terms of what happens to you. Unless you are part of the ultra-lucky 60 or so people in Michigan who beat a DUI at trial each year (in other words, about 99.8% of those arrested for drunk driving do not win by going to trial – less than 1% – only .14 or so percent – hit that jackpot), or you otherwise manage to have your case thrown out of court, then you will be going through the PSI process, and it will be the script the Judge follows when he or she sentences you. Given this simple reality, it is critical that we examine every aspect of your current situation to see how it could impact the way you are seen by the probation officer doing your PSI.
Many of my clients set up their PSI appointment with me and simply bring their paperwork with them so we can go over everything. This is really the best and easiest way to prepare for a PSI. Sometimes, the “best” way to answer something may, as I stated earlier, seem counter-intuitive. If I seem a bit circumspect here, it’s for good reason. One the one hand, I don’t need to the other side know that it’s a two-way mirror, meaning that I don’t need to give too much away about how I see how they see you (read that last part a few times to get it). On the other hand, I’m not here to teach every other lawyer how to do things my way, either. Moreover, just as when a layperson tries to play doctor or lawyer, the whole idea of “a little knowledge is a dangerous thing” is relevant here, because an integral part of how I prepare my client comes from my post-graduate schooling in addiction studies. Understanding the clinical side of alcohol issues (and those things that are so often mistaken for “alcohol issue”) is very relevant in how I prepare my clients, and the last thing I want is some other lawyer trying to copy what I do without understanding the very serious clinical ramifications involved.
Where you are in your life is a critical factor that will be examined in your PSI and used in the accompanying sentencing recommendation. Knowing this, it is imperative that you are thoroughly prepared for it. This involves a lot more than just telling a client to go in and make his or her life sound great. Where you are now is intimately related to where you’ve come from, and the two things must be examined together. Yet for everything we’ve looked at here (and probably the biggest takeaway is that there is no way to even scratch the surface of the whole “where you are” factor in whole book, much less a blog article), we have not even touched the most important part of it all, the mandatory alcohol assessment. Nothing you will do or say will matter as much as how well or poorly you score on that “test.” We’ll pick up with that in the next installment, and stop here for now.