Anyone facing a 1st offense drunk driving charge has lots of questions. In fact, as each hour passes, every unanswered question sprouts even more questions. This article will deal with just one of the questions that, as a Michigan DUI lawyer, I’m asked quite frequently: “Should I get into some kind of counseling?” While my answer is most often a simple “no,” there is a longer explanation behind it, and that will be the focus of our current inquiry.
To begin, I have to define a few things, beginning with me:
First, and technically speaking, I am a Michigan DUI lawyer because I am a licensed Michigan attorney. More accurately, I am a Metropolitan Detroit, Tri-County area DUI lawyer. Specifically, that means that I am a DUI lawyer who only handles cases in Macomb, Oakland and Wayne Counties. This means that I know how things work in the courts of the Detroit area. All of my experience is here, and after 23 years, I’ve certainly accumulated a lot of it. If you’re facing a DUI in Macomb, Oakland or Wayne County, I know the difference between one court and the next, and even between different Judges in the same court. The other side of the coin, though, is that while I suspect things might be similar beyond the Detroit area, I don’t really know.
Second, a “1st offense DUI” means, rather obviously, any DUI charge if you don’t have any priors. Yet even if you do have a prior offense, as long as the conviction for it occurred more than 7 years before the arrest for your current charge, the new case can only be brought as a “1st offense.” That 7-year mark is critical because the law begins measuring the date of your last DUI from the date of conviction, meaning the date on which you pled guilty.
Third, a “high BAC” charge, sometimes written up as “OWI enhanced,” or otherwise known as “super drunk” is still a 1st offense. In fact, legally speaking, you can only be charged with this “enhanced” DUI if you are a 1st offender. Of course, as noted above, if you had a prior more than 7 years ago, any subsequent charge is a 1st offense. To be clear, it doesn’t matter what your BAC results, if you have had a prior DUI within 7 years, you cannot be charged with the “high BAC” or “enhanced” OWI.
Fourth, and following from above, the technical name for a drunk driving charge in Michigan is really OWI, which stands for “Operating While Intoxicated,” and not “DUI.” There is no legal term called “DUI,” nor is there a charge named “DWI.” While people use these terms rather freely, you will never see anything except “OWI” or “Operating While Intoxicated” on a ticket or any official paper issued by the state, or by a court. After years of using the technically correct term, I finally gave up and gave in and now use “DUI” just like everyone else.
Fifth, the terms “counseling” and “treatment” are often used interchangeably. For the most part, this is okay, but the reader should recognize that someone staying at an inpatient facility and being given medication to ease the effects of alcohol withdrawal is being “treated,” and not “counseled.” By contrast, someone meeting with a substance abuse counselor once or twice a week is in “counseling,” and not really being “treated.” For simplicity’s sake, we’ll stick with the common, interchangeable use of the term counseling and treatment, having at least noted, at the outset, that they can, technically speaking, refer to different rehabilitative modalities.
A lot happens when you’re arrested for a DUI. The first 24 hours following your arrest is stressful. As soon as you think of one thing, another pops into your head, and soon enough, your head is practically spinning. Of course, everyone wonders if there is some way to just make the whole thing go away. What if the officer didn’t read me my rights? Maybe they can cut me some slack because I have a good record and a good job and this is really going to screw me up…
Soon enough, though, most people start thinking realistically, and begin to go from fantasizing about miracle outcomes to the realities of making things better. Whatever else, they, wonder, if this thing isn’t going to go away, what can I do to minimize the consequences I face? At some point, usually early on, the idea of counseling or treatment crosses your mind. Most often, at least in a 1st offense case, this “idea” of counseling or treatment isn’t motivated by some internal feeling that your drinking is out of hand, or that you really need help, but rather by the search for ways to mitigate the consequences of the charge itself.
Bound up with all that is some vague idea of looking good for the Judge. Wouldn’t it be better for me if the Judge thinks I take this seriously? Of course the Judge wants every DUI offender to take his or her case seriously, but the Judge cannot help conclude that, if you think you have a drinking problem and need help, then you probably do. In other words, if you seek professional counseling about your drinking, how can anyone conclude that you don’t have a problem? The message you send by taking such a serious step is that you believe that you need help. Whatever else, the court will never step in and disagree with that. The problem, however, is that you might have just dug yourself into a rather deep hole.
Presented with this reasoning, I’ll often receive a response like “Well, it’s not that I have a problem, but I just want to make sure it doesn’t happen again.” Think about that for a moment: Unless there is a problem with your drinking, or your judgment, or your chosen social circle, why would you need help to make sure you don’t voluntarily go out and drink and drive and risk being arrested again? No matter how you cut it, the decision to enter counseling or treatment sends a clear message that you have issues that need attention.
By the same token, if you don’t have an underlying alcohol problem, or you’re not prone to making dangerous, self-destructive choices, and/or not otherwise unduly influenced by a bad group of friends, shouldn’t you be able to just shake your head and tell the Judge how horrible and traumatic an experience this DUI case has been, and that it has been more than enough to completely and forever prevent a repeat performance? After all, it only makes sense that a normal person would learn from his or her mistake.
And who decides what kind of counseling you should have? Overwhelmed by the stress of a pending DUI charge, can you really make heads or tales of different counseling or treatment approaches such as brief interventions, cognitive behavioral therapy, or traditional (meaning disease or deficit model) IOP? I can.
If there’s one thing I bring to the table that clearly separates me from all other DUI lawyers, it’s my additional and formal education in addiction studies. Beyond having a passion for the clinical side of things (and more than 20 years of self directed study of this subject), I am officially involved in the University, postgraduate level study of alcohol and addiction issues. I understand the development, diagnosis, recovery and treatment of these issues from the clinician’s side of things. I know all about how a person’s drinking can become a problem, and how he or she can (or won’t) recover from it. Yet as a DUI lawyer, my first job is to spare you from as many consequences as possible, and that begins by making sure you don’t wind up being seen as having a problem that you don’t. I can use my clinical knowledge to help you in the legal setting.
If the court thinks you have any kind of drinking problem, it is going to pile on loads of classes and counseling and alcohol (meaning breath and/or urine) testing. If there’s one thing you want to get across in a 1st offense case, it’s that this DUI arrest represents an isolated, out-of-character incident. You want the Judge to be convinced that you are as low a risk as can be to ever do this again. Getting into treatment is not the way to send that message.
That said, there are cases where a 1st offense DUI is, in fact, the result of an underlying problem with alcohol. In those cases, I often split my role as attorney and counselor. I would never want anyone to forgo any help he or she might need, but if getting that help puts us at risk for a harsher sentence in your DUI case, then it’s most often better to get that help confidentially. In other words, at least within the parameters of the DUI charge itself, we have no obligation to go broadcasting to the court that you’re in counseling. Instead, we’re far better off working under the distinct impression that your DUI arrest is not indicative of an underlying problem and winding up with a more lenient sentence, allowing you to get whatever help you need on your own terms. Otherwise, the court will impose all kinds of testing and other conditions that will only serve to cost you time and money.
Yet for all of this, there are times when getting into counseling for a 1st offense DUI is a good idea. These situations are far more the exception, rather than the rule, but they do come up from tine to time. If you have a bunch of prior MIP convictions, or other alcohol or drug convictions (even though none are actual drunk driving convictions), a 1st offense drunk driving charge is going to be seen as very clear evidence of an alcohol problem. If you are facing a DUI (whether or not your actually charge with a “high BAC” offense) and your breath or blood test result was really high, the Judge (and everyone else that matters) will automatically draw the conclusion that you have a pretty high tolerance for alcohol. No one gets that way by being a moderate or non-drinker. In these situations, the right kind of counseling or treatment can be helpful to your legal case.
Fortunately, I am in both the legal and clinical position to help make the decision about whether counseling or treatment is a good idea. As we observed before, the terms “counseling” and “treatment” are often used to mean the same thing, even though they really don’t. There are as many kinds of counseling and treatment as there are flavors of ice cream, and you will not be a happy camper if you get pushed into something you hate. AA, for example, is a great program. People in AA very often believe that the AA program is the best and only way to go. Yet modern research clearly shows that amongst those individuals who achieve and then maintain long-term sobriety, only about 1 in 3 is involved in AA. That means that 2 out of 3 people do better with something other than AA.
As much as lawyers get a bad rap, there is no shortage of counselors who will sign you up for as much counseling as you can afford. It becomes important to know your options. As a general rule, I follow the “less is more” philosophy and try to help my clients avoid getting sucked into unnecessary counseling, or counseling that just doesn’t seem a good fit. If you wanted to study a martial art, and you went to a karate studio, a judo studio, a kickboxing studio and a tae kwon do studio, each one would tell you it’s the best fit for you. I can help make sure you don’t get fleeced like that.
The bottom line to all of this is that, for the most part, getting into counseling or treatment for a 1st offense DUI is not necessary, and is very often counter-productive. In some cases, it can be helpful. I have a unique background that enables me to assist in that determination. The end result is I will actually make things better for you.