Michigan Criminal Defense Lawyer Blog
My work as a DUI lawyer in Michigan is helpful to my clients, yet being a lawyer is not considered one of the “helping professions.” Part of this has to do with the fact that as a DUI attorney, I help people avoid or minimize the consequences of a drunk driving arrest. That may fix an immediate problem, but it doesn’t help a person get “better.” In this article, I am going to explore a much deeper meaning to what I see as my ability to help someone in any DUI predicament, including a 1st offense or High BAC case. However, I think it’s fair to observe that, for starters, lawyers, Judges, the legal system and even society have failed miserably at being of any real help in repeat offense drinking and driving situations.
Let’s begin with the pretty well established reality that DUI cases are about money. Sure, everyone wants to be protected from a getting killed by a drunk, but once a person gets pulled over and asked out of the car (meaning that an arrest is a virtual certainty), the money train starts rolling. Sit in any Detroit-area district court on any day and you’ll quickly realize the DUI cases are the bread and butter of the court’s revenue stream. Drunk drivers, more than any other group of offenders, pay the court’s bills. This is completely beyond argument.
Does this mean that the court system doesn’t care about the DUI drivers who go through it? Of course not; in fact, once the bills are paid, the problem is that sometimes, some Judges “care” a little too much. Unfortunately, all that caring often results in piling on the mandatory AA attendance. Even sobriety courts are essentially AA based, and that is a problem. There’s more to “helping” than just AA, and we’ll get to that later.
Here’s another thing that doesn’t get much coverage because talking about it, at least as a DUI lawyer, isn’t exactly good for business, but the whole point of this article is to speak honestly, rather than toss around a bunch of attractive slogans and sales pitches: If I asked you to go out and just randomly gather 100 people any way you wanted, meaning that you simply rounded up 100 “man on the street” types, and we called them “group A,” and then I told you to go and round up another 100 people, but this group had to either have previously had a DUI conviction, or be dealing with a DUI case right now (again, it doesn’t matter how you collect the people), and we called them “group B,” without exception, there would be a significantly higher percentage of people in “group B” with alcohol problems than you would find in “group A.” This makes perfect sense when you think about it, but people facing a DUI would rather not think about it. That’s normal, and that’s okay, but it doesn’t mean that it should be ignored…
The hard reality, however, is that virtually every person in “group B” will insist that he or she doesn’t have any kind of drinking problem. Every lawyer and every Judge hears the same thing in just about every 1st offense DUI case: “I don’t have a drinking problem,” or, “I don’t really drink that much.” As a DUI lawyer, I’m expected to take that as gospel, and then work the case accordingly. This really brings us to the point of this article: I do just that, meaning I help my client position a 1st offense DUI as an aberration, or out-of-character incident. I avoid and/or minimize the consequences as much as humanly possible. In fact, I can do this better than just about anyone because I have extensive, post-graduate training in the field of addiction studies, and that makes me unique amongst lawyers. It means that I understand and speak the language of counselors and therapists, and that I understand the etiology, development, diagnosis of and treatment of alcohol use disorders. I also know when the court gets it wrong and thinks it sees a problem that isn’t there, and I can protect you from that.
Because I understand how alcohol problems develop, how they are treated, and, most important in a DUI cases, how they are diagnosed, I can use my clinical knowledge to make sure my client isn’t seen as having any kind of issue with his or her drinking, while, on the other hand, that same clinical knowledge allows me to see the markers of a troubled relationship to alcohol that could be missed by most anyone else. This may sound confusing, so let me unravel it a bit. In some DUI cases, a person’s BAC (breath or blood test) results are much higher than average. Forget about the “High BAC” charge; we’re just talking about the actual BAC number here. Normally, a higher BAC is seen as correlating with a tolerance to alcohol. A person who only drinks once and a while couldn’t usually stay conscious long enough to drink him or herself to a .22 BAC. I’ve written other DUI articles about this wherein I’ve made clear that your BAC score says a lot about you within the context of a drunk driving case. The correlation of a higher BAC to a developed tolerance to alcohol is just that – a correlation. It is NOT an absolute. The system tends to miss that, but I don’t, so I prevent my clients from getting rolled over just because of a number.
Yet I also know that the correlation between a higher BAC and a more troubled relationship to drinking, while not absolute, does mean something. Thus, when I go and do my duty as a DUI lawyer and take the next 100 clients with elevated BAC scores and help get through the court’s screening process as being “exceptions,” I’m certainly helping them avoid some consequences, but am I really helping the person? In the long run, some (or even quite a few, if we accept the “correlation” theory) of these people have or will develop a drinking problem. Are they really better off if I help them look “normal” so that there is little inquiry or concern or education about, or monitoring of their drinking, and it isn’t addressed?
The 1st offense situation is easy. Things get exponentially more complicated when we turn our attention to 2nd offense DUI cases. Here again you can count on the vast majority of those arrested for a 2nd offense insisting that their drinking is not a problem. They’ll acknowledge that a 2nd offense looks bad, but they’ll be able to explain forever how they aren’t big drinkers. Here, however, the real life statistics tell a different story. If you’re facing a 2nd offense DUI, it is clinically understood that there is a very strong likelihood that you have a troubled relationship to alcohol. Sure, there are exceptions, but it becomes hard to sort things out when everyone claims that he or she is an exception. Moreover, Michigan law classifies anyone with a 2nd offense within 7 years, or a 3rd offense within 10 years as a “habitual offender,” and along with that label attaches a presumption that the person has an alcohol problem. Because a 2nd (or 3rd) offender is presumed to have an alcohol problem, his or her license is revoked.
I know all this a million times over, yet my DUI lawyer job is to minimize consequences. My clinical training makes it impossible for me to not see the signs of problematic drinking, but that same knowledge enables me to help a client test out so that he or she looks like an exception. Even though the law requires that a 2nd or 3rd offender get into counseling, I can do a lot to keep that manageable and minimize how much of that gets hurled at my client. That’s might seem great right now, but years later, does it do any good if I have essentially enabled a drinking problem to go undetected?
The solution to all of this lies in the attorney-client relationship. Perhaps the most overlooked part of being a lawyer lies in the very title of the occupation: Attorney and counselor at law. Being a lawyer entitles me to counsel someone about legal issues, but my clinical background and experience enables me to counsel a person about his or her relationship to drinking, as well. To be clear, I am not, nor do I pretend to be some kind of substance abuse counselor. There would probably be a conflict of interest in there somewhere if someone tried to be both. Yet as a moral person, I think I have an obligation to step up and have what might start out as an uncomfortable conversation with someone regarding his or her drinking, especially in a repeat offense DUI context.
It is certainly neither my job nor my place to tell a DUI client that he or she has an alcohol problem. Look, I’m in business as a DUI lawyer, so the last thing I want to do is send everyone running away. Yet there are times when a person, fresh off of a 2nd or 3rd offense DUI arrest, is more open and more amenable to the idea that his or her drinking is the common denominator to being in trouble again. After a quarter century of doing this, I have watched countless times as a person who may have been more suggestible to the idea that he or she needs to reassess his or her drinking behavior right after an arrest grows defensive about that behavior as the months go by. Isn’t there an opportunity, if not an obligation, to make sure that doesn’t happen? For all my talk about clinical training, doesn’t that come with a price to do more than just help my clients slide through a DUI as unarmed as possible? I think so, especially when all I need to do is start a conversation; if there’s receptiveness, that’s great. If I find resistance, I move on. Even so, if may be the one thing I say, or the fact that I at least broached the subject that tips someone’s decisional balance at some point, and I’d be remiss for having failed in that regard.
So what’s my point? Well, in the first place, it’s certainly not as profound as one might think. This article hasn’t been a lead-up to some grand revelation. Just like the point itself, this article has, more than anything else, been a discussion, rather than a lecture. The point is that I have to use my education and experience to help my clients, both in the courtroom, by making things better, and in the confines of our relationship, by speaking honestly. When I meet a client with a 2nd DUI charge, I am not going to moralize and tell him or her that that he or she has a problem with alcohol, but neither am I going to just pretend that a 2nd offense DUI is not strongly suggestive of the presence of a problem, either. This is not about morality, nor is it about being an “alcoholic.” Plenty of people just find that their ability to make sound decisions when drinking is involved becomes impaired. For some, it happens often, while for others, it only happens once in a while. Whatever the numbers, if it has happened enough for a person to rack up 2 or more DUI’s, then it cannot be ignored, and I cannot abide being a lawyer who would do that. If anything, that plays right into the stereotype of lawyers being greedy and self-serving.
In my work life, I have found a seamless integration of these two goals. I pride myself on bringing my clients through the DUI process with the least amount of negative consequences possible. Even in 3rd offense, felony cases, I am able to capitalize on the “problem” aspect of the person’s drinking to soften the blow in the court case. This is not about just advising the client to “get into counseling.” This is another point where my clinical background is useful. There are all kinds of counseling and treatment options, but the court system in the United States is decidedly focused upon the “traditional” counseling and AA approach. AA is often ordered in repeat offense DUI cases, even though the evidence shows that it has limited effectiveness. This is not about bashing AA because for some people, it can be the best thing that ever happened to them.
But it doesn’t work that way for everyone. Some people can turn their lives around because the “find Jesus.” That’s great for them, but it probably isn’t the missing answer for most people. Many people who really need to examine their relationship to alcohol will do far better in one-on-one counseling, using things like cognitive behavioral therapy (CBT) or a similar, more “logical” approach than they will at an AA meeting in a church basement somewhere. The problem is that the whole legal system, including DUI lawyers, don’t offer any other solutions because you need to know about this stuff before you can help someone look into it. That’s where I can help, and I will.
You’re forgiven if you don’t know about something and, therefore, you don’t say or do anything about it. When you’re in a position to help, and that means to say or do something that may not be easy, at first, and you stick your head in the sand and do nothing, well, that’s unforgivable, and I simply won’t do that.