The most important part of a drunk driving case is what actually happens to the person charged with the offense. In that way success in a DUI case is best measured by what does NOT happen to you. Obviously, the best outcome is to get the DUI case dismissed completely. Most of the time though, the evidence isn’t compromised enough for that. The fact is that most cases are resolved through negotiation. Ultimately, a person’s fate is decided at the sentencing. However, what takes just before that is the most critical part of every drunk driving case, and that’s what we’ll examine in this article.
Most people know that a sentence is the “outcome” of a criminal or drunk driving case. What most don’t know is that, before the sentencing can take place, there is a critical, investigative process done by the probation department. This results in a formal sentencing recommendation being sent to the Judge. It is absolutely key to the final outcome of any case. This recommendation, which we’ll explore below, is pretty much followed by every Judge in every court. It is a critically important component of the DUI process.
Under Michigan law, any person who is found guilty of, or who pleads guilty to any alcohol-related traffic offense MUST, before being sentenced, undergo a mandatory alcohol screening. This is variously called an “assessment,” “screening” or “PSI” in different courts. In all of the courts, at least here, in the Metro-Detroit area of Wayne, Oakland, Macomb and surrounding counties, this screening is handled by the probation department. It’s part of a larger process known as a “pre-sentence investigation,” often referred to simply as a “PSI.”
As noted above, the end result of the PSI process is a sentencing recommendation that is sent to the Judge advising him or her what to do to the person. Our focus here is going to be on how that recommendation is made, and what can be done to positively influence it. Nevertheless, the reader should understand that, in a very real way, a sentencing recommendation is basically a blueprint for what’s going to happen in a DUI case. There is no Judge, anywhere, who is going to deviate in any major way from it, especially in a drunk driving case.
This means, then, that the way to get a better outcome in a drunk driving case is to get a more favorable sentencing recommendation in the first place. To do that, we have to understand a few things about the alcohol screening and the larger PSI process.
Technically, the law requires that, prior to a person being sentenced for OWI (“Operating While Intoxicated,” the actual term in Michigan for drunk driving, and what just about everyone calls a “DUI”), he or she must undergo a mandatory alcohol screening. That’s pretty much all that’s required. However, that’s not how things work in the real world. Instead, the alcohol screening is just one part of that larger PSI process, which, in turn, is just a part of the even larger DUI process.
The screening itself is really a written “test,” administered by the court’s probation department. This can get rather deep, so instead of getting lost in the weeds, we’ll stick to our bigger-picture overview. I have written plenty of other articles and website sections that examine the alcohol screening and the PSI in detail. The interested reader can click the links, check out our website, or search this blog to learn more.
That said, a little bit of history will be helpful before we go further:
There was a time, many years ago, when the process in a drunk driving case was very different. Back then, the court would simply send a DUI defendant to a local substance abuse counselor to have the alcohol screening completed. The counselor would administer whatever test he or she used and thereby diagnose whether the person either had, or was otherwise at risk to develop an alcohol problem. Then, he or she would forward whatever clinical recommendations seemed appropriate back to the court, to be used by the Judge at sentencing.
Most often, the recommendation would be for some kind of alcohol education class (or classes) or counseling. Substance abuse counselors generally did NOT weigh in on things like jail, community service, or length of probation for a drunk driving case. Basically, the Judge decided those things on the fly.
That way of doing things was frequently a logistical nightmare. A person would have to contact an independent agency, schedule an appointment, show up, and be screened. Then, the counselor would have to get his or her findings and recommendation back to the court in time for sentencing in the person’s drunk driving case.
At an unknown, later point, some court found that there were reasonably reliable screening tests that could be administered by non-clinicians. This meant that, instead of going through the hassle of sending someone out to be screened at an off-site facility and then hoping the report came back in time for sentencing, the screening could be done in-house, by the probation department.
In no time at all, every local court started doing it this way (there were a few early holdouts, but they soon gave way).
Here’s the thing; the probation departments have always been responsible for completing a pre-sentence investigations in criminal cases. By its nature, a PSI recommendation DOES include suggestions for length of probation, jail, if any, and community service. It’s not like having the probation officer do the alcohol screening in addition to that was any kind of big stretch.
The PSI is very much what it sounds like – a “pre-sentencing” investigation. A probation officer is assigned to a case, and is ultimately responsible for making a written sentencing recommendation to the Judge. That recommendation takes into account both the facts of the case and the life circumstances of the person to be sentenced. As the name implies, it is supposed to be the product of an investigation.
This means that the probation officer is going to do a bit of a “deep dive” into the person’s background. Everything, from where and to whom he or she was born, where and with whom he or she was raised, right up to what’s going on in his or her life presently, will be examined. This, of course, includes learning about the person’s criminal and driving record, if any and his or her history of alcohol and drug use, employment, mental and physical health and relationships.
In addition the probation officer will also interview the person. That’s important.
To make this simple, consider the following hypothetical. Assume that a probation officer is doing 2 PSI’s for 2 different people, both of whom have a drunk driving case. Each was pulled over for speeding.
The first person is Tipsy Tina. She has no prior criminal record, and a good driving record, as well. Tina was raised by a loving, close family. She is married, has 2 kids, and has worked at the same, good job for the last 12 years. When tested at the police station, her BAC was .13.
The second person is Bad Luck Billy. He had a rough upbringing, and has a rather long criminal record. He has never held the same job for very long. He is currently unemployed, and owes child support for 2 kids that he doesn’t really see. On top of that, he has an obvious substance abuse problem. He refused the breath test, but the blood test results in his drunk driving case came back at. .23.
As the probation officer sets out to do the PSI’s for Tina and Billy, the first thing to be looked at will be their results on the alcohol screening test. That “test” is a written questionnaire, and each answer a person gives has a point value. The total of those points is added up, and compared to a scoring key. Based upon the person’s total, the scoring key indicates whether he or she has an alcohol problem, is at risk for one to develop, or has no issue with drinking whatsoever.
One big issue is that there are always some question(s) on these tests about legal problems and drinking. Thus, anytime a person is answering such questions as the result of a drunk driving case, he or she starts out with a handicap. Imagine that an alcohol assessment test has 24 questions (some have well over 100), and the scoring key indicates that a “yes” answer to 2 or more questions indicates the presence of problem drinking. Remember, anyone taking the test for his or her DUI will have to answer “yes” to at least one about legal problems and drinking.
As a side note, this is why it’s always important for a DUI lawyer to carefully examine all the evidence. This is done to find anything that can be challenged and get the client out of the charge. If there is, then he or she must fight hard, either to get the whole case dismissed, or to otherwise drive the very best deal possible.
Circling back to those cases that can’t be completely “knocked out,” it’s natural for people try to figure out how to do as well on these tests as possible. Unfortunately, and for reasons that go way beyond what we can get into here, the “better” answers (meaning those that won’t trigger a score that indicates either an alcohol problem, or any potential problem) are NOT obvious. In fact, some are just plain counter-intuitive.
In other words, some of the answers that seem better are not.
Moreover, what an unsuspecting test-taker doesn’t know is that it’s expected that people will try to portray themselves as favorably as possible through their answers. In fact, one of the most commonly used tests actually measures for that! It literally evaluates a person’s test-taking attitude.
All of this matters because a person simply cannot overcome doing poorly on the alcohol screening test. If a problem is suspected by one of these screening tests (and they’re all NOT created equal), then that’s that. The results are basically taken at face value in the court system. This is why it’s so important to understand these things in advance, and be able to do better through the whole screening and PSI phase.
Let’s get back to our example with Tipsy Tina and Bad luck Billy:
Imagine that Tina tested out as NOT having any kind of drinking problem, nor otherwise being at risk for one to develop. When she met with the probation officer (who had already confirmed her background information), she left a good impression. As a result, the probation officer then recommends an extremely lenient sentence for her. All that’s called for is probation for 9 months, a single-session alcohol education class, and payment of fines and costs.
Bad Luck Billy, by contrast, doesn’t do so well. Right out of gate, the screening test reveals that he has a serous alcohol problem. His record includes 1 prior drunk driving case, along with number of other convictions for various criminal offenses. When he meets with the probation officer, Billy tries to talk his way out of things. He insists he doesn’t have any kind of problem, but he’s not very convincing.
Concerned that Billy is not only a risk to himself, but also the public, the probation officer recommends a jail term followed by a 2 year period of intense probation along with rather extensive counseling.
On the day of sentencing, given the probation department’s recommendations, it won’t matter very much if Tina’s lawyer shows up with laryngitis and can barely speak, because the Judge will be inclined follow the PSI recommendation anyway. Consequently, things will turn out good for her.
Poor Billy, however, could hire a team of the best lawyers around, but they’re not going to get the Judge to budge very much from what probation has recommended in his drunk driving case, either. He’s going to have a much bumpier ride than Tina.
To be sure, my team and I often can get a Judge to do something other than follow a sentencing recommendation to the very letter. However, in a drunk driving case, the simple truth is that there isn’t a whole lot of room for movement.
Here’s the grand takeaway: The key to success isn’t to get the Judge to do something different than what probation recommends, IT’S TO GET A BETTER RECOMMENDATION IN THE FIRST PLACE!
If a person doesn’t have a fundamental understanding of how important this part of the case really is, then what will happen to him or her is, in some part – large or small – left to chance. Getting the best outcome doesn’t happen by accident. As always, good work is the key to good results. In our office, our team makes sure each client knows how to best proceed through the alcohol screening and PSI process. We want to make sure they understand how to present themselves to the probation officer.
Because the alcohol screening will be done as part of that larger PSI process, a person must understand how he or she is likely to be perceived at that interview.
Consider this example: Imagine someone is sitting for his or her PSI interview in a drunk driving case. The person had a rather elevated BAC of .19, and was charged with a High BAC (super drunk) offense. The probation officer asks, “why did you drink so much that night?”
The person replies, “My best friend just went into hospice care for terminal cancer, and my dog died the week before.”
That’s terrible, of course, but here’s how that answer is perceived:
“I have had a lot of stress recently, so I reached for alcohol to cope, and self-medicate, instead of trying a healthier way to deal with it.”
Now, imagine if, in answer to the question about why he or she drank so much that night, the person said this, instead:
“You know, I don’t really go out much or drink, a lot but an old friend was visiting from out of town and called me and a few others to meet up at a bar. I kind of felt obligated to go. Maybe it’s because I’m mostly a homebody and don’t drink very often, but those people sure could put them away. They kept buying one round after another, and I just got caught up in it.
At one point, I said to myself, ‘I’m done,’ but few drinks after that, I was so far out of it, I even forgot that. Looking back, I see now that I should have called an Uber or something, but at the time, I just wanted to get home, and stupidly thought I could make it without getting caught. Looking back, I probably should have just stayed home.”
The first person basically of dug a hole for themselves, whereas the second person has a better chance of this incident being perceived as an out-of-character mistake. Making sure our clients know these things is part of how we manage our DUI cases. To be clear, this example barely scratches the surface. The larger point is that the alcohol screening test and the PSI are not just important, they are the foundation upon which what happens to someone in a drunk driving case is ultimately decided.
If you’re facing a DUI and looking for a lawyer, be a wise consumer and read around. Pay attention to how different lawyers break down the legal process in a drunk driving case, and how they explain their various approaches to it.
This blog is a great place to start. It is fully searchable and updated weekly with new, original content. I have written and published over 600 articles in the DUI section, and more are coming. The reader can find more useful information here than anywhere.
Don’t take my word for it though; check around for yourself.
Once you’ve done enough reading, start calling around. You can learn a lot by speaking with a live person. If your drunk driving case is pending in the Metro-Detroit area, meaning anywhere in Wayne, Oakland, Macomb, or the surrounding counties, make sure you give our office a ring as well.
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’ll even be happy to compare notes with anything some other lawyer has told you.
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.