The Court’s “Alcohol Bias” in DUI cases – Counterpoint

In the previous articles about the alcohol bias, I explained how it can result in “seeing” problems that aren’t there, or seeing those that do exist as worse than they really are. As a result, unnecessary counseling or treatment is often ordered by courts, or, when some kind of help IS warranted, what does get ordered may be far more intense than what is really needed by the person who has to go through it. I’ve pointed out that a rather general explanation for this is a pervasive notion in the court system that “it’s better to be safe than sorry.” In this article, I want to try and look at things from the court’s (safe) side of things.

Point-Counterpoint-B-300x300The fact that this “other side” can be examined in a piece about 10 times smaller than the larger examination of of the alcohol bias says something, to be sure. Even so, the courts do have some genuinely valid concerns. For as much as there is to dispute the basis of the alcohol bias in the court system, we should, in all fairness, consider the things that support it, as well. For example, as much as the alcohol bias is subconscious, every Judge is always aware that, when sentencing someone for a DUI charge, instead of ordering any kind of counseling or treatment, they can just send the person to jail.

In the blink of an eye, and given that choice, every person I have ever met would much rather go to all the counseling and meetings in the world, rather than get locked up. Although the end result can be imperfect, it is almost always the intention of the court system is to provide a DUI driver with whatever level of education or counseling he or she needs, or that will be beneficial to him or her. The underlying objective of the sentence in every DUI case is really two-fold: on the one hand, what’s ordered should be disincentive enough to convince the person to never drive drunk again, while, on the other hand, it should provide the appropriate level of education or/or counseling to address whatever issues may have led up to the DUI in the first place, in order to avoid a repeat performance.

Even though they have to balance those considerations, no Judge, in the real world, is going to experience much regret for sentencing a DUI driver to more counseling or treatment than may have actually been needed in any given case. In a sense, a person could consider having to go through that as part of his or her punishment. Every Judge out there knows that if they were to give a person 2 choices, one being jail, and the other NOT jail, but a boatload of counseling or treatment instead, every sane person would choose the latter.

Moreover, every Judge knows that even if a person doesn’t “need” or isn’t otherwise ready to accept the lessons of education or counseling at the moment, there is always a chance that something they could hear now might be helpful or useful to them at some later point, and that, in and of itself, is a good thing.

In the real world, this actually does happen a lot. In our roles as a driver’s license restoration lawyers, where winning a case is all about proving the client’s sobriety, we have, quite literally, heard thousands of stories from people who, although not receptive to the lessons of AA (or whatever program they were ordered to complete) at the time they were sent, remembered enough to help tip the scales in favor of a decision to quit drinking later on.

The caution here is that this kind of “better to have it, but not need it, rather than need it and not have it” mentality (very much related to the idea that “it’s better to be safe than sorry”), needs to be mindful of the reality that it can, sometimes, be counter-productive to force somebody to go through treatment they don’t really need.

This risk of this happening, though, is relatively low, and the idea of making things worse by sending someone to unnecessary education sounds a lot worse than it really is.

Education, by definition, can be a class, or a few classes (or even an open AA talk), and is a lot less “involved” than either counseling or treatment. Even if a person has almost no risk of ever developing a drinking problem, listening to information about alcohol and alcohol problems is very different than going through counseling, support, or treatment, where a person is expected to participate in working on fixing a problem it’s assumed they have.

As a practical matter, then, there is almost no risk in sending someone to any kind of educational or informational-type program they don’t need.

Imagine, for example, that as the reader, your back is fine, and you haven’t had any kind of injury, but you are nevertheless required to attend some lectures about recovering from a back injury. This may be the most boring thing you’ve ever done, and a complete waste of your time, but it’s a heck of a lot different than being required to do actual occupational and/or physical therapy for a back problem you don’t have.

Forcing a person into actual treatment he or she isn’t ready for, or that is otherwise not a good fit for him or her, can create resentment of and resistance to future helping efforts, should the need for them ever arise.

Thus, if the court system’s “better safe than sorry” approach is prophylactic to the extent that everyone gets some kind of educational program, there is little risk of any harm being done. This really only becomes an issue when someone without a drinking problem is required to complete (and pay for) a course of treatment for a problem that isn’t there.

Even if this does happen, for the most part, a good therapist will know how to handle things, understanding, as they do, the inherent limitations of the court system, particularly as it relates to diagnosis and treatment options

Moreover, it must be acknowledged that, for many courts, DUI cases provide an important, and, in some cases, extremely important, part of the revenue stream.

Unfortunately, the same holds true for many counseling operations. If you run a clinic and you wind up getting a steady flow of referrals from your local court – meaning people who MUST use and pay for the services you offer – you’ve hit a home run. Before the reader gets the wrong idea, let me be clear that I’m not suggesting anything greedy or malicious here, I’m just stating the obvious.

If you dig deep enough, everything is about money, or at least getting enough of it to survive. I’m in business to make money, and so is your doctor, dentist, and plumber. Your local church has to keep the lights on and pay its staff. Even the most helpful counselor in the world needs to make a living.

Still, most therapists try to do the right thing.

This may be a bit of an overstatement on my part, and it certainly only represents my opinion, but in general, counselors, as a group, are very kind-hearted people. Nobody becomes a counselor to get rich, and very few ever do. Like nurses and teachers, these people belong to one of the true “helping” professions.

No counselor wakes up and thinks, “today is the day I’m going to make a fortune.” Instead, most that I know go to bed wrestling with other people’s problems, and wake up thinking about how they can help make their clients’ lives better.

It has been my experience that if a counselor at a clinic gets a client sent to them by a local court, only to find that the person doesn’t really need any kind of actual substance abuse treatment, they’ll “back off,” and NOT force the person to work through a problem they don’t have.

Instead, they’ll provide good counsel and go over issues that do matter to the person, like what led up to the DUI, or what was going on in his or her life when it happened, rather than waste time pretending there is an alcohol use disorder that doesn’t actually exist.

The reader may ask, “so why doesn’t the counselor just explain to the court the person doesn’t need any kind of counseling?”

In a perfect world, that would be exactly how it would work, but we don’t live in a perfect world. The counselor can’t just send a letter to the court and say “this person doesn’t need treatment,” and expect to get any more referrals. Remember, probation officers and Judges are not practicing clinicians. As much as they may want to help a person, they’re still part of the criminal justice system.

The DUI process has evolved in such a way that the idea of “preventative measures” and “help” has gone from something to be ordered where needed to being seen as needed and ordered in every case.

For all kinds of reasons, including those of money, politics, the alcohol bias, and an overriding “better safe than sorry” mindset, the reality is that it falls to each counselor to decide what kind of education or counseling a person really needs, at least as much as he or she can make that call, and it’s right there that we run into a huge problem:

Here’s an example that might make you shudder: it is a generally accepted proposition that relapse is part of recovery. Rather than go too deep into this, the “nickel version” is that a lot of people who decide to quit drinking and get sober have a “slip” or 2 along the way.

This is so fundamental that many sobriety court programs build in a kind of “allowance” for it, and have established penalties for participant who does drink or use drugs while going through their program. These penalties are typically something like 3 days in jail for the 1st violation, 7 days for the 2nd, and 21 to 30 days for a 3rd slip, usually followed, at that point, by expulsion from the program.

While everyone hopes a person trying to quit drinking and get sober can do so without picking up another drink, the simple reality is that IT JUST HAPPENS.

In the private clinical world, if a counselor is working with a client who has a slip, he or she will use that incident as a teachable moment. The client and the counselor will investigate and examine what happened that led the person to pick up again. They’ll try and identify any triggers that led to the person drinking, and explore what the person can do in the future to prevent it from recurring.

The therapeutic goal is to find out what led up to the relapse (in other words, what went wrong), and see what the client can learn from this incident to avoid it another “slip.” Whatever else, the counselor wants the client to feel comfortable talking about his or her slip so they can fix whatever issues underlie it.

Things are very different, however, for a counselor who is seeing a client pursuant to a court order. In those cases, the counselor is required to provide the court (almost always through the probation officer) with all case notes. The person must sign a release, and the counselor is obligated to promptly report any “slip” to the court.

Can you imagine how this destroys any therapeutic alliance that exists between the counselor and the client (in these cases, also known as the “defendant”)?

In the first instance, unless a person just totally forgets, nobody is going to show up for their weekly therapy appointment and admit to their court-ordered counselor that they drank the week before.

However, even if a person DID do that, once the counselor reports it the court and the person has to show up to court for a probation violation, and independent of whether they get any jail time or not, that person will NEVER share anything meaningful with that counselor again.

No normal person would thereafter see the counselor as any kind of “ally,” and there is almost no chance that anything good will come from any more counseling appointments.

Counselors HATE being put in that position.

But every time a court sends someone to counseling, that’s exactly what happens. What makes matters worse is that the counselor sees a slip as normal (at least in his or her private capacity), whereas, to the court, it just reinforces the alcohol bias.

Instead of being a “double-edged sword,” this kind of situation is more like a 3-sided blade: the counselor is right to hate having to report any slip, the court is “right,” in a sense,” to not give up the ability to monitor a person under its jurisdiction, but it’s also wrong for putting the counselor in the position of having to potentially rat out his or her own client and thereby destroy any kind of therapeutic alliance.

In the grand scheme of things, it’s not beyond contemplation that some counselors have chosen what they believe to be the high road, and NOT reported a slip, so as to be able to continue to actually continue to work with an help a person, rather than play warden and forfeit any inroad that may have been made, or would have otherwise seemed possible.

As the saying goes, “It’s complicated.”

Still we have to remember that for as much as the alcohol bias can be a burden to anyone going through the DUI process, it’s not like any Judges are looking for ways to get things wrong, or makes things worse in OWI cases. At the end of the day, almost every Judge tries to do what he or she thinks is right. For as misguided as the alcohol bias can be, it does get constant reinforcement by events in the real world.

I have, in this article, somewhat minimized the view from the “other side.”  Our roles as DUI lawyers is very much to help minimize what happens to our clients, and avoid as much of the legal and punitive fallout from an OWI charge as possible.

My team and I always go the extra step to make sure our clients get any help they may need, and the reader probably couldn’t find a law practice anywhere as recovery-oriented as ours.

Still, at the end of the day, success in a DUI case is always best measured by what does NOT happen to you, so while we can acknowledge and appreciate that the alcohol bias is not necessarily malicious, and does, sometimes, bring a few potential benefits to the table, we never forget that our clients come to us to get out of a jam, not further into it.

If you are facing a DUI anywhere in the Detroit-area (Wayne, Oakland or Macomb County) and are looking for a lawyer to make things better, do your homework and read around. Pay attention to how lawyers explain the DUI process, and how they explain themselves.

When you’ve done enough of that, start checking around. All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700, or 586-465-1980.