The most important part of a Michigan DUI Case – Part 2

In part 1 of this article about the most important aspect of a Michigan DUI case, I began outlining how and why a person’s sentence, meaning what the Judge does to him or her, is the product of the results obtained from an alcohol assessment (a written “test” that is scored) and an investigation, including an interview, completed by a probation officer who then puts everything together into a written report and recommendation to be used by the Judge. I pointed out that in all cases, including DUI cases, this “recommendation” is much more like a blueprint for exactly what will happen. Knowing that, I discovered that influencing that recommendation in a positive way (in essence, procuring a more lenient recommendation) is much more effective than merely of showing up in court at the time of sentencing and trying to persuade the Judge to disregard what has been suggested by the probation department.

stamp-important 1.2.jpgNone of this would matter a bit if it did not consistently result in significantly better and more lenient outcomes in DUI cases. In most things, a new high-tech idea or solution is supposed to make things easier and quicker. There is no such thing as a shortcut, however, when handling a DUI case. There are no shortcuts to preparing the client to undergo an alcohol evaluation and probation interview; proper and thorough preparation takes a lot of time. Compared to a DUI lawyer who “cranks them out,” I spend an enormous amount of time with my clients. My first meeting with a new client will generally last at least 2 hours, and often longer. I need to really get a feel for the client and what happened. The actual interview with the probation officer and alcohol assessment usually takes about an hour or so. I will spend way more time than that just preparing my client for it. Athletes spend countless hours preparing for a single, 1-hour contest; high school students spend endless hours rehearsing for a 1-hour play. In the world of carpentry and woodworking there is an admonition to “measure twice – cut once.” Anything that’s important (and the alcohol assessment and probation interview are extremely important) is worth doing right.

A few weeks ago, I was hired to meet with an executive whose DUI is pending on the west side of the state. I don’t handle cases there, and this fellow already had a lawyer, but having done his research, after his plea bargain had been finalized in court, he asked his attorney what to do at alcohol assessment/probation interview. His lawyer’s best advice was “How about tell the truth?” While being honest is a virtuous quality, being prepared is far better. In today’s world we don’t let kids take the ACT or SAT exam without some kind of prep course, and just about everyone who has ever gone to graduate school did something like that, even if it was to work off of a study guide. The executive hired me specifically to prepare him to undergo his alcohol assessment and probation interview because he understood the important role those things play in the outcome of his case.

While I may have had a flash of unique insight to figure out that doing well on the alcohol assessment and in the probation interview had a direct and beneficial impact on the outcome of a DUI case, that was the easy part. Figuring out what steps needed to be followed in order to do well on the alcohol assessment and in the probation interview was the next (and only logical step), but accomplishing this would require study, and training. And so it (and I) began…

I’ll skip the biography for the most part, but I have studied alcohol and drug issues for over 20 years, focusing on the diagnosis of these disorders and recovery from them. This ultimately led to my ongoing involvement in the formal study of addiction issues at the post-graduate, University level. If you’re going to have any effect on how a client performs on an alcohol (or drug) assessment, then you better have an in-depth understanding of both the theoretical and practical application of the fundamental concepts of the etiology, development, diagnosis and recovery from alcohol and other drug (the clinical acronym is AOD) problems. This is not something that you can just “pick up” from experience, nor, like engineering or medicine, is it something a person can sufficiently learn from even the most dedicated attempt at self-study. You have to go to school for this stuff.

Thus, if you want to help someone do well on an alcohol assessment, you need education and experience to develop a real expertise in the clinical realities of assessment and diagnosis. I have that knowledge, and I have the confidence that as a lawyer, when I walk into a courtroom, between the prosecutor, the Judge, and myself, I am the foremost expert about alcohol and drug issues. Now that I have this knowledge, I cannot imagine being a DUI lawyer without it. I certainly don’t argue medical malpractice cases, and I cannot imagine a lawyer on either side of surgery malpractice case not having a thorough understanding of proper surgical protocol for the kind of procedure at issue. That’s more understandable because very few people find themselves with a scalpel in hand in an operating room. Just about everyone does, however, find themselves, at least at some point in their life, with a drink in their hand. That, by itself, does not make one an expert on alcohol issues any more than driving a car makes one an engineer.

As good as all this sounds, how does it help a DUI client, if at all? Think of the majority of legal websites you see that have at least some information about DUI beyond various lawyers’ mere self-descriptions of being “tough” and “aggressive.” Most focus on the importance of the evidence in a DUI case. The 2 biggest areas where a lawyer can challenge a case and have it tossed out of court are the traffic stop and the chemical (breath and/or blood) test results. Those things are relevant in every DUI case (like any good DUI lawyer, I examine those facets of the case with a fine-toothed comb) to the extent that the stop or the test result evidence can be challenged and kept out of court, thereby killing the case. If the evidence cannot be successfully challenged, or, if it is challenged and the Judge doesn’t throw the case out, then for the most part, all the expert knowledge in the world is useless. Imagine the bomb squad being called out because of a suspicious package; if it turns out it was just an empty, forgotten shoebox, the bomb squad’s expertise was essentially wasted. I bring relevant expertise…

Every single DUI defendant whose case isn’t tossed out of court will, no matter what, undergo the mandatory alcohol assessment and probation interview. Every last one of these people will show up in court for sentencing and be required to review the probation officer’s sentencing recommendation and address the Judge about it. All the breathalyzer and legal experts in the world are about as much use with that specific, and determinative aspect of the case as the bomb squad; my skill set, however, is directly relevant in every single DUI case.

I’m sure my webmasters are going crazy now, because if this article hasn’t been long and complicated enough, it’s about to get even more (although not that much more) dense. My goal is to speak to the cerebral and interested reader and eschew the quick and simple format encouraged by the website experts in their drive to make everything short and search engine friendly. Let’s actually explore something in detail…

Unless you’ve been in a coma since your arrest, you should at least have some inkling that the main concern in a DUI case is the drinking behavior of the person arrested. Mothers Against Drunk Driving (MADD) owes its entire existence to this issue. There is an unavoidable reality in every 1st offense DUI case, and it can be explained like this: If you take a truly random sample of 100 people and put them in room “A,” and then you take random sample of 100 people who either have had or are currently facing a DUI and put them in room “B,” the room “B” group will always test out as having a significantly higher percentage of alcohol problems. It is inescapable that the court knows that when dealing with DUI drivers, it is dealing with a higher risk group in terms of problem drinking. Not only that, but the members of this group have come to attention because they drink and drive and then get caught. Anyone who is required to “test” as a condition of bond knows this in a very real way.

In its drive to “fix” everything and everyone, the court system relies upon a lot more than just punishment to deter drunk driving. In today’s world, education, counseling and monitoring (i.e., testing) are standard practices in DUI cases. Given that there is already a built-in predisposition to suspect that anyone with a DUI has a drinking problem, the judicial system (or at least that part of it that deals with DUI cases) creates and then reinforces its own reality. Thus, a person with a higher BAC score is “seen” as having a tolerance to drinking and therefore much more likely to have a drinking problem. While there is a correlation between a higher BAC score and the likelihood of a drinking problem, it is nothing more than a mere correlation. Just as smokers are at higher risk to develop lung cancer, not all smokers do, and not all people with lung cancer are or were smokers.

This is about as convenient a stopping point as anywhere. We’ll resume, in part 3, by looking at how the alcohol assessment thrusts the probation officer, ill equipped and inexperienced, into the role of a clinician, and we’ll see how that creates problems. We’ll also examine how that can be used advantageously in a DUI case.

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