Michigan Criminal Defense Lawyer Blog
In a recent article, I examined the legal and political implications of a “High BAC” DUI charge in Michigan. The very different focus of this article will circle back to the fact that in a DUI case, your BAC result is often the first and most important factor by which you’ll be judged in the court system. In a sense, you’ll almost wear it, like one of those “Hello my name is ______” stickers. Think of just about any news story involving a drunk driver in recent memory, and you will probably have heard something like the person’s “blood alcohol level was .22, almost triple the legal limit.” What this means is that just about everyone, whether they have any clue what they’re talking about or not, uses a BAC result to further label a drunk driver, and when that number is anything above, say 1 and ½ times the legal limit, to imply that the person is a big drinker, or may have an alcohol problem. This is really the crux of the situation I want to address in this article, because no matter how you cut it, your BAC result tends to define you and can (but does not have to) play a key role in the outcome of your DUI charge.
This is not another article about “High BAC” charges, so here, when I talk about a “high BAC result” or the like, we’re simply talking the breath or blood test results and not the particular legal charge. The biggest concern with a high BAC result is that it implies the person who provided it has a drinking problem. For as much as we can say about this, the takeaway that anyone has when they raise their eyebrows or otherwise remark about an elevated BAC score is that it means a person drinks too much. And make no mistake, the court system generally blunders into this very same conclusion before it even knows if the person at issue is young or old, black or white, or even male or female. In other words, just about every identifier of a person you could name becomes secondary to a person’s BAC result. It becomes job number one for me, as the DUI lawyer, to counter this kind of erroneous, albeit reflexive kind of conclusion. Beyond my legal skills I use upon my formal, clinical education in addiction studies to help make sure that BAC numbers DON’T define my client.
This, by the way, is why, the larger panorama of “DUI lawyers,” understanding “science” involves a lot more than just the science of breath and blood testing. Sure, it’s great to be able to prove that a particular breath or blood test is wrong, or not reliable because of some goof with how it was administered or interpreted, but those situations are by far the exceptions and not the rule. The Michigan State Police are required to do an annual audit of all Michigan courts regarding every DUI and related charge that is brought. As of this writing the last published year is 2013. If we look specifically at the “DUI” charges of operating while intoxicated (OWI), which includes all “High BAC” charges, and operating while visibly impaired (OWVI), there was a total of 35,299 people charged. Chances are, if you’re reading this, you’re either facing an OWI (1st, 2nd or 3rd offense) or High BAC charge. Of those 35,299 cases, only 511 were thrown out of court; another 1978 were categorized as “no pros dism,” meaning that the prosecutor elected not to move forward. A total of 58 people went to trial and won, meaning that they were found “not guilty.” You can run the numbers any way you want, but no matter how you do it, only 7.22 percent of all those DUI cases wound up getting dismissed. The reality is that for all the “science” one can theoretically apply to challenge breath or blood test results, the likelihood of winning with that strategy is still only single-digit small, so a tactic with a much greater likelihood of success is needed…
Think about this reality: Most child molesters are men, but certainly not all men are child molesters. Who would ever think such a thing? In the same way, most DUI offenders with a drinking problem have high BAC results, but not all people with high BAC results have drinking problems. Unfortunately, that’s not the way the system “thinks,” or at least the way those who run it think, and it is fatal to do nothing more than shrug your shoulders in resignation as if to say, “what can I do about it?” In fact, there is a lot to be done, and this is where the proper application of science can have a real impact in every case, and can dramatically influence the outcome of yours, as well. This beats the heck out of merely hoping that the police screwed up the evidence or yours otherwise fall into that lucky 7.2 percent of cases that get “knocked out.”
We cannot deny that common sense tells us that a higher BAC test result means a person has developed a tolerance to alcohol. Common sense also, however, tells us that if you have a child who is hyper, the last thing you should do is give him or her stimulants, yet that is exactly how we medicate such children with attention deficit hyperactivity disorder (ADHD) when they are prescribed Ritalin and Adderall. The point here is that common sense is not always right. To be sure, if you took 200 people charged with a drinking and driving offense an 100 of them had BAC scores of .12 or below, and the other 100 had BAC results of .19 or above, you would almost always find a higher incidence of alcohol problems, and probably alcohol problems that are “farther along” amongst the .19 and above group than with the .12 or below group. This is really nothing more than a restatement of our child molester analogy, however. Let’s see what light real science can shed on this…
In the clinical world (and this is the world to which the legal system is supposed to defer for purposes of diagnosis and treatment of any drinking problem) “tolerance” has a very specific definition, and that definition DOES NOT include BAC results, either directly or by inference. Many readers may at least recall, from a basic psychology class, that the whole catalog of diagnosable mental health disorders is contained in the DSM, or Diagnostic and Statistical Manual. This is the bible of psychiatry and psychology. The manual, periodically revised, sets out the range of mental health problems humans can face as well as the criteria for diagnosing them. Diagnostic criteria are vitally important, because they provide a framework for things like specific symptoms and time frames that all must be calculated and interpreted before a diagnosis can be made. Thus, if cousin Pete snorts a few lines of coke for the first time in his life and has a paranoid reaction, thinking that the TV is listening to him, those symptoms are transient, and will abate when the drug wears off. Ultimately cousin Pete is not paranoid. Uncle Fred, however, who has boarded up his windows, won’t talk on the phone and hasn’t trusted the public water supply for the last 20 years is probably genuinely paranoid.
This is hugely important because, as I mentioned, “tolerance” has no clinical significance as a mere number. In other words, in the clinical world (meaning the world of substance abuse counselors and related experts in the field), it makes virtually no difference that someone was arrested for a DUI and had a BAC result of .09 while another person blew .21. Instead, under the DSM-V, the current edition, published in May of 2103, here is how “tolerance” is addressed:
Tolerance, as defined by either of the following:
a) A need for markedly increased amounts of alcohol to achieve intoxication or desired effect b) A markedly diminished effect with continued use of the same amount of alcohol
The only other provision within the criteria for what is now called “alcohol use disorder” (the old categories of abuse and dependence have been eliminated) that involves even the most remote concept of quantity evaluates whether “Alcohol is often taken in larger amounts or over a longer period than was intended.” Key here is the word “often.” No one is talking about “ever,” or the once in a lifetime occurrence; instead, the defining characteristic is defined as “often.” In the court system, you are essentially defined by the one incident that brings you under its jurisdiction, quite contrary to how you would ever be evaluated in a proper clinical setting. This can be a huge problem, and it’s even worse if you or your lawyer don’t recognize it up front, or otherwise don’t know what to do about it.
An astute DUI lawyer will reach out to a good substance abuse counselor for help in a case involving an elevated BAC result. This involves a lot more than simply seeking a favorable opinion from someone with clinical credentials. For me, it begins with working with a good clinician whose education, experience and integrity are above question. It has been my experience that being able to speak the language of the counselor helps so that I can work with him or her to cast our report into proper legal shape. A key goal here, of course, is to help disabuse the Judge of the idea that a high BAC result has any significance beyond a measure of how drunk the person was at the time of his or her arrest. In other words, we have to show the Judge that your BAC result does NOT indicate you have worked up a tolerance to alcohol because you’re a big drinker, and that the result does NOT mean you have, or are more likely to have, a drinking problem than the next person. Here, I use my clinical background in conjunction with my ability to communicate as a lawyer to translate the legal stuff to the substance abuse evaluator, and, in turn, translate the clinical stuff to the Judge. And to be sure, the bottom line is that it is what the Judge thinks that matters most, because he or she alone will impose your sentence.
As I have noted in my other writings on this topic, the idea that your BAC defines you is so ubiquitous that police, prosecutors, probation officers, Judges and even defense lawyers often use these numbers as the primary identifier when talking about any given case. While I rather hate the whole “politically correct” movement, this kind of speech seems like a mistake to me, and I don’t do it. In fact, I am on guard so that if a prosecutor asks me which case I’m handling, and I say something like, “Dan the Driver,” if he or she responds, “oh, the guy who blew a .22,” I can retort “Yeah, well, that’s not what it looks like.” Invariably, this will elicit a question like, “how so?” and then I have my first chance to debunk the prevailing misconception about the significance of a BAC result.
Beyond my take on the situation, if you’re facing a DUI, you just know that long before High BAC became an offense in its own right, clients would sigh in exasperation that their BAC result was high, and express an implicit understanding that it didn’t look good. This notion is practically instinctive. There is so much to this that I can only scratch the surface in this article, but here’s another uncommon sense, counter-intuitive reality that is too often overlooked and that I use to my client’s advantage: If your BAC results are high, and you’ve been in an accident, or rolled the car, or beached it somewhere, or staggered and swayed outside of your car like a 3-legged moose on ice skates, we can use that to our advantage. Instead of protesting “I wasn’t that bad” when describing your level of intoxication, we’ll take ownership of appearing really drunk as evidence that you haven’t developed a tolerance to alcohol, and that instead of being surprisingly coherent or coordinated with a high BAC score, you were, indeed, drunker than you’ve ever been, and, quite literally, “all over the place.”
No matter what anyone says on the topic, a BAC result becomes your own kind of scarlet letter. With the right work, we can minimize the impact of a higher BAC in your DUI case. I am fond of pointing out that, in addition to knowing the facts and the law, what separates a top-shelf DUI lawyer from the rest of the herd is the skillful management of time, perception and science. In this article we have at least opened the discussion of how we can use science to manage perception, particularly the court’s perception; if you are facing a DUI in the Metro-Detroit area and are looking for a lawyer, give my office a call and we’ll continue the discussion as it relates to your case.