Michigan Criminal Defense Lawyer Blog
There are times I’d like to really detail how I’ve handled a particular DUI charge, or the specific result I’ve accomplished, but I have to hold back in the larger interests of diplomacy and politics. In this article, I’m going to focus on an extremely good outcome I produced in a local DUI case just 2 days before it was written. The 2 points I want to make are first, that outcomes like this may surprise and encourage the reader, but are commonplace for me and second, that the fact that I don’t brag much about these kinds of results isn’t so much because I’m modest, but rather because I think it is important to never put any court in a spotlight it may not appreciate, especially when the break I’ve gotten may make the court seem “soft” in a way that a Judge wouldn’t appreciate.
The case at issue was handled in a Metropolitan Detroit area court. My client was charged with 3rd offense drunk driving, which is a felony. His 2 prior offenses both occurred within the last 10 years, so by all appearances, he was on a roll. To keep the reader’s interest, let me fast forward to the conclusion: I got the felony charge dismissed and the client was able to avoid getting that on his record; instead, he was able to plead to a reduced misdemeanor charge and, better still, when all was said and done, he walked out of court without having to do a single day in jail. There is even more good news to the story, but we’ll save that for the end, because the strategy I used is key to how I produced these results, and why such outcomes are all part of a day’s work for me.
Never forget that Judges are elected. It is, understandably, a political liability to be seen as “easy” on drunk drivers. For that reason, I generally don’t believe it helps in the practice of defending DUI cases for any lawyer to start cataloging his or her accomplishments in drinking and driving cases with enough detail to identify a particular court. No matter how you analyze things, it never hurts a Judge’s ability to get reelected or standing in the community if he or she develops a reputation for being tough on drunk drivers, although the opposite is certainly true. Accordingly, I usually omit any geographic reference when I write about any of the cases I have handled.
In some of my other articles, I have mentioned that the best outcome possible in any DUI case is the produced by knowing the facts and the law as well as the skillful management of perception, science and time. That certainly sounds highbrow enough to be profound, and in its proper application, it really is; the problem is that skillfully managing things like perception and time requires being stealthy, or, one might even say, secretive. It is a given that the magician wants to amaze the audience, and giving away the secret to the trick is not the way to do that. What this means, then, is that I can’t really get too much into how I do the things I do. As a prosecutor recently said to me in another context, “best to not let them see how the sausage is made.” Even so, there is a lot I can share about how we go from arrest and charge to good result…
Think about it for a moment: Any DUI attorney who doesn’t know the relevant law or has not mastered the relevant facts of the client’s case is essentially incompetent. If you line up 10 “DUI lawyers” each one should have a solid understanding of the facts of his or her client’s case as well as the law that applies to it. The same kind of thing really applies to any group of surgeons, or airplane pilots, or plumbers or mechanics. What makes anyone different beyond competence and experience is his or her field is technique. I’ve had things successfully fixed by various plumbers over the years; some were rough, and scratched up my chrome fixtures, while others were gentle and didn’t damage a thing. Two surgeons performing the same surgery may both be able to complete the operation, but one may leave a more noticeable scar, while another may hardly leave a trace, and be called “an artist” for the deftness of the way he or she closes the incision.
Let’s go back to our 10 DUI lawyers: If each one is assigned to handle the same case, our starting point would be that each is well versed in the law and each has a good handle on the underlying facts. If that was all there is to it, then each should produce the identical result, correct? We know that’s not the case, however. What separates the results achieved by each attorney is his or her technique. This goes beyond simply applying the law to the facts; instead, “technique,” in this context, means how one manages time, perception and science. I have to control, to the extent possible, how the prosecutor and the Judge perceive things. This can, and often is directly impacted by my management of time. If a person is hauled into court to face DUI charges after rear-ending someone at a stoplight, you can be sure that everyone will be “hotter” about the incident in the first days thereafter. If we can slow things down, then we can cultivate the benefit of cooler tempers, because that’s what happens with the passage of time. If, in the meanwhile, the client gets married, or has a child, or gets a promotion at work or just otherwise stays out of trouble, these developments (or lack thereof, in the case of just staying out of trouble) can only help. Perhaps we get a bit lucky and everyone’s attention is drawn to a new and different (perhaps more serious) case. There are countless ways this can play out, but the larger point is that “technique” means finding a way to manage the facts through the lens of perception by controlling things like time.
Science, in the context of a DUI, is about a lot more than breath or blood tests. The science behind how people perform on field sobriety tests (imagine being asked to count backwards if you’re dyslexic) or regarding the reliability of BAC results (just about everyone knows that having acid reflux can affect your breath test score) is not only well established, it’s well known to most regular lawyers, much less those who call themselves “DUI lawyers.” The most important role of the court in every drinking and driving case that moves forward is to have the driver screened to see if he or she had, or is at risk to develop a drinking problem, and to then make sure the “appropriate” level of education or treatment services is ordered. To accomplish this, the law requires that an alcohol assessment screening be completed, and that the results of that screening be forwarded, in writing, to the Judge for use in determining a person’s sentence. Here, we run into a lot of what can be called “junk science.” It is here that things can, and often do take a turn for the worse, because the whole assessment and determination of whether a person has, or is at risk to develop a drinking problem, which is a purely a clinical proposition, is instead assigned to someone who is definitely not a clinician – the probation officer.
This results of this written alcohol assessment (variously called a substance abuse assessment, evaluation, PSI or screening) is, beyond any debate, the single most important determinant of what will happen to you in your DUI case. And to be clear, the “determination” of whether you have, or are at risk to develop a drinking problem carries a strong negative bias. In other words, do you really think that the court system sees drunk driver’s as NOT being more likely than the general population to show up with some kind of troubled relationship to alcohol? And, on top of that pre-existing bias, we have the established fact that DUI drivers, as a group, do, in fact, have more alcohol problems than the population at large. If you were to go out and select one random group of 1000 people at large, and then had to go out and get second group of 1000 people, except that for your second group the single qualification is that they had to either currently be facing or have previously had a DUI, it shouldn’t surprise you to learn that the DUI group will always have a higher incidence of alcohol problems that the population-at-large group. This is also science, but it is science that will directly affect the outcome of your case, more than all the breathalyzer and blood test science in the world ever will, unless those results are thrown out of court for some reason.
Worse yet, and as I noted, the person making the determination of whether or not you may have a problematic relationship to alcohol is not any kind of clinician, but rather the probation officer. And if that’s not bad enough, the probation officer ONLY “assesses” someone’s relationship to alcohol in the criminal context of a drunk driving offense. The probation officer is required to make an education or treatment recommendation based upon precisely ZERO experience actually educating or treating people. And it keeps getting worse: No matter what a probation officer determines or recommends, he or she NEVER gets to see the results. This would almost be funny, if it wasn’t so serious. There is no professional in any kind of “clinical” capacity who does not monitor the results of his or her treatment. Every kind of therapist or doctor monitors, to some extent, how things are going. Think about it: Even if you’re a baker, you’ll at least get some feedback if your last batch of bread tastes funny, or your doughnuts are hard enough to break a tooth.
This never happens to a probation officer. He or she essentially operates in a compete vacuum. The “assessment” they give is little more that an “over the counter” self-test that does little more than, at best, help a person determine if he or she may have a drinking problem, and that he or she should follow up for a real assessment with a professional. Except that there is no follow up in a DUI case; the “result” is taken as final, in a context where there is already a strong bias that a person has a drinking problem, and then the probation officer recommends whatever counseling or education he or she chooses, without ever even having had the chance to learn how often, if ever, it works or not. Imagine that you get a job making widgets, and that after you make them, no one provides any kind of feedback as to whether you’re doing the job right, or wrong, or how you could do it better; you simply make your widgets and just assume you’re doing it right because you never see or hear another thing about them.
Seeing this situation, I decided to formalize my decades-long study of the assessment and diagnosis of alcohol and substance abuse issues by jumping into it at the University, post-graduate level. You don’t have to look far to find a lawyer who knows the science of breath testing, but with this writer as the sole exception (at least that I know of), you won’t find a lawyer who fundamentally understands and has formal education in the field of addiction studies. Explaining this in an article is like trying to summarize calculus in an article; it cannot be done. The takeaway, however, is that my clinician’s understanding and lawyer’s expertise combine to make sure that the “diagnosis” of the probation officer and his or her “treatment plan” don’t stick you with all kinds of burdensome and expensive counseling, education and/or treatment that you don’t need, or that isn’t right for you. And it culminates in my ability to produce outcomes like my 3rd offense felony DUI client avoiding the felony charge and not spending a single day in jail. Even the guy who invented the breathalyzer machine couldn’t have pulled that off…
Consider, for a moment, the Alcoholics Anonymous (AA) program. Decades ago, AA was really the only game in town. Pretty much everyone in the world knows about AA. It has become the “brand” for recovery, like Kleenex has become the “brand” for tissues, Windex has become the “brand” for glass cleaners and Formica has become the “brand” for laminate counter tops. Today, contrary to popular misconception, science confirms that the majority of people who maintain long-term abstinence from alcohol do it without AA. The reality here is different than the perception.
Now, consider that from the point of view of those who do the actual science regarding addiction and recovery, it is understood that the court system in the U.S. is about 2 decades behind using modern treatment protocols for alcohol and drug problems. The path of a treatment option from study to validation to widespread use in the offices of therapists is called “diffusion,” and it takes anywhere from 5 to 10 years for new modalities of treatment to diffuse from the University halls to your local counselor’s office. It is just accepted by those that study this stuff that it will take another 10 to 15 years for those same treatment methods to be recognized and implemented by the judicial system.
This is why we see that the standard of treatment for an alcohol problem, circa 1990, was an IOP (intensive outpatient program) combined with AA, which is the standard course of treatment used by the court system today. The courts are, predictably, about 2 decades behind the curve. While AA has never gone “out of style,” the recognition that fewer than 1 out of 3 people who maintain long-term abstinence do it by attending AA has spurred the modern clinician to employ the things that work for the other (meaning more than 2 out of 3) people. This has led to the increasing use of treatments like CBT (cognitive behavioral therapy), REBT (rational emotive behavioral therapy) brief interventions and motivational interviewing. The modern clinician is far more “holistic” compared to his or her counterpart of 20 years ago. The court system, on the other hand, is as far behind as it always has been, and is more or less stuck in the AA mentality of the early 90’s. It becomes my job to change the court’s perception in any given case, but that cannot be done by merely being brash or loud; instead, I have to use science, and show the Judge the new reality of modern counseling and treatment protocols.
Expertise in the science of blood test results won’t help you with any of this, and unless your DUI charge is, in fact, dismissed, you will absolutely have to confront this “scientific” aspect of your case. Clearly, then, this science is the most important because it will directly affect the outcome of every single DUI case that isn’t otherwise tossed out of court. Because I can manage this facet of a DUI case, and because I can similarly manage perception and time aspects of things, I can produce what appears to be exceptional results in even the “worst” of cases. In that sense, there is no “secret” as to why these kinds of results are all just in a day’s work for me. It is the interfacing of the facts and the law with the management of perception, science and time that are the ingredients of the recipe; it is the combination of those ingredients in the proper balance that produces the particular results.
It was through the careful balancing of the facts, the law, and time, perception and science that I was able to take a person facing a 3rd offense felony DUI, with two relatively recent prior drunk driving convictions in his past, and work things out so that my client avoided the felony conviction and walked out of court without having to serve a single day in jail. If that’s not enough, he is on the waiting list for transfer into a different court’s sobriety program. Sometime this summer, his probation will be monitored by a sobriety court very close to his home (and in a different county from where he is currently being supervised) and the mandatory 5-year revocation of his driver’s license will be overridden and he will be able to drive again, legally.