Michigan Criminal Defense Lawyer Blog
This is the 4th part in our examination of the Pre-Sentence Investigation (PSI) and mandatory alcohol assessment in Michigan DUI cases. In part 3, we left off our overview of the “where you are” in your life component right at the point of the actual written alcohol assessment. In this installment, we will zoom in on the subject of written alcohol testing as part of the PSI for anyone who has been convicted of an OWI (Operating While Intoxicated) or other alcohol-related traffic offense. Without a doubt, the alcohol screening assessment is the single most important determinant of how things will turn out in a Michigan DUI case that otherwise doesn’t get thrown out of court. In It is fitting that this absolutely critical step in the DUI process get its own treatment. Here, however, I must talk about myself a bit before getting into the subject: I am, of course, a DUI lawyer, but beyond law school, I have also completed a formal, post-graduate program of addiction studies. This means that I academically and fundamentally know and understand the research into, and theories of, addiction. I know all about the development, diagnosis and treatment of alcohol problems from the clinical side, while I also understand, from daily experience, how the court system tends to get caught up in the pervasive over-diagnosis of alcohol problems because of its inherent alcohol bias. The point here is that I can help save you from unnecessary time and expense, meaning classes, counseling and treatment, resulting from a drinking and driving charge.
A lot of people come to a DUI lawyer all worried, and cannot stop telling anyone who will listen, how willing they are to do any kind of classes or counseling just to stay out of jail. I would be, too, if it came down to a choice between jail or treatment, but the real kicker is that, especially in 1st offense drinking and driving cases, jail simply is not on the menu. Why would you jump into rehab you don’t need in order to “avoid” jail that you’re not going to get, anyway? With only a single local Judge as an exception (and even that isn’t a dead-sure thing), you don’t get jail in a 1st offense drunk driving case in the Detroit area, meaning Macomb, Oakland or Wayne County. I’m sure it’s like that in a lot of other places, as well, but I limit my DUI practice to the Tri-County area so that I can speak with authority when I talk about what happens around here. The bottom line is that you want to avoid as much of the burden and expense of counseling – particularly unnecessary counseling – as possible. Even in those cases where a person knows that his or her relationship to alcohol has become problematic and wants help, it is better to find the kind of help that is a good fit, rather than just getting “fit” into whatever program the court assigns without regard to what works for you. This is where my understanding of the broader clinical (meaning treatment and recovery) landscape becomes especially useful.
Yet for all of this, the court is required, by law, to assess a person by having him or her complete a written alcohol screening test. Each answer on these “tests” has a numerical point value, and those answers are scored and totaled up, and then a scoring key is used to determine whether or not a person falls into a range that shows him or her to be at risk to develop a drinking problem, or in fact has one, and, if so, how far along it has progressed. In a perfect world, this would be an unbiased, tabula rasa (clean slate) assessment, but simply by virtue of the fact that this rather clinical function is being performed in the criminal justice setting, as the result of a drunk driving offense, and by a corrections (probation) officer, no less, it turns out to be about as biased as you can get. Before we get into the nitty-gritty of things, consider this: How much professional interaction do you think the average probation officer has with people whose drinking hasn’t caused some kind of problem (like a drunk driving arrest)? In other words, the entirety of a probation officer’s contact with DUI drivers is limited to people for whom the use of alcohol has given rise to a criminal conviction. It is almost laughable that anyone could think it is possible to do any kind of unbiased assessment in that context. With that as our background, let’s now turn to the whole assessment process…
Michigan law requires that, prior to being sentenced by a Judge for an alcohol-related traffic offense (we often say “DUI,” but there is no such offense in Michigan; instead, the legal term is “OWI” which stands for “Operating While Intoxicated”), a person must undergo an alcohol assessment. This is a written “test” of sorts. Interestingly, at the national level, it is generally presumed that the driver will have this completed by a clinician. For reasons that go beyond the scope of this article, at least in the Greater-Detroit area, the assessment is handled by a probation officer and not a substance abuse counselor. As I noted before, the stated purpose of the assessment is to determine if a person has, or is at risk to develop a drinking problem. Or not. Strictly speaking, the probation officer is as capable as anyone else of handing over a written test, having someone fill it out, and then calculating the results using the included scoring key. On the one hand, this kind of test is good for detecting “red flags” that should thereafter be checked out by a real clinician. On the other hand, this type of pedestrian screening tool is not intended to serve as the sole basis for a clinical diagnosis, although, in some courts, it is presented as such. In fact, according to the American Psychiatric Association,
[The] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) is the standard classification of mental disorders used by mental health professionals in the United States. It is intended to be used in all clinical settings by clinicians of different theoretical orientations. It can be used by mental health and other health professionals, including psychiatrists and other physicians, psychologists, social workers, nurses, occupational and rehabilitation therapists, and counselors. DSM-5 can also be used for research in clinical and community populations.
Well, so you’d think, right? However, on many occasions (even very recently), I’ve seen a PSI report claim to make a formal DSM-V diagnosis. In that most recent case, the probation department “diagnosed” my obviously un-troubled client as having “alcohol use disorder – mild to moderate.” I find this attempt to “play” clinician interesting, in much the same way I would if the probation officer was diagnosing bi-polar disorder, or schizophrenia, or any other mental health disorder. The point I’m making here is that the whole assessment process has grown way beyond what it was ever supposed to be in the DUI world.
The good news, at least for my clients, is that those concerns belong to me, and I’ll be the one to properly address them to the Judge. Of course, diplomacy and finesse are the guiding rails of persuasion in this regard. Whatever else, a lawyer should not thunder (perhaps the better term is blunder) into court and start barking that probation has got it all wrong. Instead, in a case like the one I mentioned above, the Judge must be persuaded that the diagnosing should be left to those trained – and credentialed – to do just that. This isn’t usually very hard for me, and to date, I haven’t had to ask a Judge something like, “Well, while we’re at it Your Honor, and since I’m here anyway, I’ve been having this pain in my left side the last few days; do you think I could stop by the probation department on my way out and get a diagnosis for that, as well?” In fact, in that recent case, I was able to get the Judge to agree that the whole “diagnosis” thing provided by the probation officer wasn’t any kind of real “diagnosis” at all, and that, given the factors I was able to cite on behalf of my client, forego ordering him into any counseling or treatment whatsoever.
The idea, and unfortunately, it’s only an idea, is that since DUI drivers are, as a group, statistically way more likely to present with a drinking problem than the population at large, it would make sense to “screen” them and see if any red flags are raised so that if there is an issue, the person gets professional help to avoid another drunk driving episode. From this single (and largely good) idea, a whole counseling and rehab industry has shot up. This reminds me of a saying my mom always repeated about saving money: “From little acorns, big oak trees grow.” The reigning thought in today’s world is that everybody convicted of a DUI should at least get some education, and that almost sounds right, except when it’s you who has to book and pay for a weekend at some hotel to do a 3-day alcohol impact program. Then, it doesn’t seem like such a good idea anymore….
I could explain how a proper screening is done in the clinical setting, but since that’s not how it’s done in a Detroit-area DUI, it really doesn’t matter much, beyond the fact that it’s worth noting that a probation officer, rather than a working clinician (think: substance abuse counselor) completes it. As a result, the probation officer brings none of the experience and knowledge a clinician gains from years of providing treatment, nor can the probation officer administer any of the screening tools (tests) that are reserved for a clinician’s use only. Instead, the probation officer can only use the kind of screening instrument that requires no training of any kind to interpret or score. If you think “over the counter,” or on the internet, in terms of test quality, you’re about right.
Still, no matter how reliable (or not) the screening instrument that’s used in any setting, it’s function is to look for “markers” of an existing or potential alcohol problem. Think about it this way: every disease, disorder or malady has certain markers, or traits. No one would screen a man for prostate trouble by having him do a mammogram. Likewise, if heart disease is suspected, an MRI of the ankle won’t reveal anything helpful or useful. Alcohol problems, and even potential alcohol problems, are found by looking for the correct markers. I work with my clients to go over the 5 key markers sought by each and every alcohol screening instrument. I believe that you should know these markers and how they are detected by the answers you give. Not knowing each of the 5 markers, as well as not knowing how and why they are important, leaves you open to be perceived of either having, or at least being at increased risk to develop, a drinking problem. Remember, this whole screening takes place within the context of the DUI court system and its inherent alcohol bias, so that sense, the cards are already, at least in part, stacked against you. This is a nice way of saying that completing the screening without being specifically well-prepared for it and learning the 5 markers, and how they are detected, is just plain dumb.
Now, if it was just this easy, I could end this article right here. Of course, there’s a catch. There’s always a catch. In the world of over-the-counter, probation-administered, court-required, alcohol-biased screening, most of the “better” answers, meaning those that won’t cause you to wind up in otherwise avoidable classes and counseling, are counter-intuitive. In other words, in many cases, what most people think of as the common-sense answer is the one the test anticipates and will work against you. Consider how you’d answer when asked how drunk you were when the police pulled you over. Most people, wanting to look good, or at least not look horrible, would reply that they didn’t think they were that bad. After all, who would say that they were stinkin’ drunk, but decided to drive anyway? The problem with that answer is that if your BAC is .12 (and most of my clients are higher than that) and you tell the probation officer that you didn’t feel that bad, you’ve either just told him or her that, 1.), you really have a tolerance and can hold your booze, or, 2.), you are just saying whatever you think will make you look good. If its number 1, then you are a pretty seasoned drinker, and certainly NOT the kind of lightweight the court system shouldn’t be concerned about. If it’s number 2, then you’re just a BS-er, and everything you say needs to be questioned and taken with a grain of salt.
Having determined that a person who provides either answer number 1 or number 2 is going to regret it, how do you think a person would fare if he or she instead responded that, although they knew they were drunk, the alcohol impaired their ability to make good decisions and they thought they could make it home without getting caught? On the one hand, they aren’t saying anything that gives the idea they have developed an increased tolerance to alcohol, while, on the other, they don’t sound like a BS-er, either. For their parts, the Judge and the probation officer (and everyone else who matters) is going to simply assume that if you were above the legal limit of .08, you were drunk. At .08, you are legally drunk. When your BAC goes higher than that, you’re seen as even drunker. Admitting you felt your booze is NOT going to hurt you, but denying it sure will. Most people don’t think about it that way, however, until we go over it.
And we have a lot to go over. I schedule a separate meeting with every DUI client before he or she goes in for the PSI and alcohol screening. This is not the kind of thing that can be covered in a half hour. Yet the payoff is huge. My clients know what they’ll be asked and how the answers they provide will be interpreted (and interpreted against them). Because of the time we spend covering the PSI and the alcohol screening test, my clients will simply do better, and thereby avoid, as much as possible, being seen as having or (and this is always the bigger risk in 1st offense cases) being at risk to someday develop a troublesome drinking pattern. This can include the person who doesn’t drink much at all, because he or she, by virtue of being in court for a DUI in the first place, still presents as someone who may, however infrequently he or she imbibes, be susceptible to not knowing when to stop, and then drive afterward because the drinking has impaired his or her better decision-making skills.
I am, of course, being a little circumspect here. The idea that “a little knowledge is a dangerous thing” is a warning that should be heeded in most circumstances. Sometimes, particularly in repeat offense drunk driving cases, a person presents as positive for some combination of the 5 markers used to detect a drinking problem in such a way that it is my responsibility to explain that to him or her. I have long believed that as much as it is my job to help a person avoid the fallout of a DUI, it is likewise my obligation to be candid about how he or she may have a troubled relationship to alcohol. Just because I don’t want to see a client get court-ordered into counseling doesn’t mean I don’t think he or she shouldn’t explore that on a voluntary basis. If, for example, a person is court-ordered into treatment and he or she skips a session because of a hot date, the counselor is required to report that to the probation officer, thereby getting the client in trouble. If the person is seeing the counselor voluntarily, and he or she skips a session because of that hot date, they may have to pay a cancellation or no-show fee, but they can then explain to the counselor, at their next session, how and why it was worth it without the threat of jail. Big difference, there…
After the results of the alcohol screening test are calculated, the probation officer will begin to formulate his or her written sentencing recommendation. This, of course, is done in conjunction with the information obtained about the person’s earlier life (“where you’ve come from”) and his or her present life circumstance (“where you are”). As I have mentioned in many places, including this article, other DUI articles on this blog, and even my website, that sentencing recommendation becomes a virtual blueprint for what the Judge will order at your sentencing. We’ll stop here for now, and come back in part 5 to look at the PSI’s sentencing recommendation, the very fixed role it plays in how things turn out in a DUI case, and what the DUI lawyer can and should do about it.