The Single most Important part of Michigan DUI Cases

It is very easy to get caught up in legal and/or technical examinations of Michigan DUI charges. After all, everyone arrested for a drunk driving charge hopes that a sharp lawyer can find some problem with the evidence and get the whole case dismissed. And while that certainly can happen, such an outcome has always been the exception, and not the rule. In fact, the cold, hard facts, as verified in the Michigan State Police Annual Drunk Driving Audit, shows that in 2013, the last year for which numbers are available, only 511 regular DUI cases were thrown out of court, compared to a total of 32,752 convictions for those same offenses. If you do the math, you’ll see that a mere 1.56 percent of people charged with OWI (Operating While Intoxicated) and OWVI (Operating While Visible Impaired) were lucky enough to have their cases dismissed. Here’s the thing: It is always important to exhaust every possibility to get your case thrown out, but as these numbers clearly show, it is just plain dumb to bank on that as your entire and only defense plan.

important 1.2.jpgInstead of hoping to be part of the lucky 1.5 percent (511) whose cases get thrown out of court, it makes far more sense to prepare to make things better in the statistically far more likely event that your case does not (32,752) get “knocked out” by the Judge. And for all the stuff about traffic stops, breath tests and whatnot, the single most important real-world part of every Michigan DUI case is the alcohol evaluation (this is a written test) that must be completed and “scored,” by law, before the Judge imposes sentence. Let me try to simplify this a bit: The overwhelming majority (98.26%) of DUI charges result in a conviction. Almost all of these occur through a plea, or plea bargain. Every case, except those few that are not tossed out of court, must follow the legal process and go through certain steps. The step that is the subject of our discussion here is the alcohol assessment that is required under Michigan’s DUI laws. This is sometimes called an “alcohol screening,” “substance abuse assessment,” “substance abuse evaluation,” or just plain “screening” by different Judges, but it all means the exact same thing: You will complete a written test (“screening instrument”) and your responses will be checked against an answer key to determine your score.

The belief is that your score somehow accurately (enough, at least, for the legal system) determines whether or not you have, or are at risk to develop, a drinking problem. These “findings” are then sent to the Judge so that he or she can order, at sentencing, any counseling, education or treatment that it is believed you need. There are about ten million problems with this kind of reasoning, absolutely none of which will do any good in the context of making your DUI case any better. However, the screening is so critically important in determining what actually happens to a person in a DUI case that it became an important reason why I returned to a University campus and undertook a post-graduate program in addiction studies. I needed to learn things from the clinical side, since the whole screening process is really a clinical undertaking, even though in DUI cases it is administered and scored by a non-clinician. Now, because of that formal, specialized training, I can have a far more substantial and positive impact on the actual outcome of DUI case than anyone without such knowledge. Of course, the power to decide what happens to you always resides with the Judge, but when I walk into any courtroom, I do so as the foremost expert on alcohol issues, and that makes me very useful (and unique) as a DUI lawyer…

This all sounds great, but in the real world, the way to evaluate “success” in any DUI case is by looking at what does not happen to you. In other words, the key to doing well is avoiding consequences. For all the legal mumbo-jumbo you can wrap around a DUI, the real bottom line is that you hire a lawyer to save you from as many of those consequences as possible. That’s really the heart of the matter, and to pretend otherwise is, frankly, disingenuous. I’m a really nice guy, but you don’t fork money over to a DUI lawyer to “buy” a new friend. In the final analysis, you hire a lawyer to make as much of your DUI go away as possible.

In a DUI, or any criminal case, the final part of the process, where you find out what your punishment will be, is called the “sentencing.” Everyone knows there will be some punishment in a DUI case, and it can range from fines and probation to all kinds of classes and counseling. In the Metro-Detroit area, jail isn’t really on the menu in a 1st offense case, and can often be avoided even in 2nd offense cases. What is always on the menu, however, are those services (classes, counseling, treatment, etc.) that are found to be appropriate to your situation. And the determination of what is “appropriate” is based primarily, if not entirely, on how well or poorly you score on the alcohol assessment. In other words, if you do well on it, then you will endure far fewer consequences than if you don’t do so well.

The trap here is that many people just blow this off, thinking, “I’m not any kind of alcoholic,” or “I don’t have a drinking problem,” and figure everything will be fine. Good luck with that. One of the more troubling things I learned when I began my post graduate studies in the addictions field, having by that time been a lawyer for over 20 years, was that the clinical world accepts as a given that the judicial system is rather out of touch with modern diagnostic and treatment modalities, and that there is an inherent risk, in any DUI case, of what is called “over diagnosis.” This is especially so when the person (probation officer) doing the diagnosing has no formal clinical training to do it. There are loads of other things that work against anyone facing a DUI, but there’s 4 specific things that, once you know them, will make the gravity of the situation much clearer:

First, it is accepted and understood, because it has been empirically validated many times, that DUI drivers, as a group, have a much higher incidence of drinking problems than the population at large. This almost falls into the “duh” category, but the problem is that everyone in a DUI situation feels like he or she does not have any increased risk to have or to develop a trouble relationship to alcohol. To get a real sense of this, put yourself in the Judge’s shoes for a moment, and consider this reality: If you took a random sample of 1000 people in the United States and called them “Group A,” and then another random sample of 1000 U.S. citizens, except that this second group had to consist of people who have either had, or are currently facing a DUI charge, and called them “Group B,” you would always find a significantly higher incidence of alcohol problems in the “B” group over the “A” group. This means that, no matter how you cut it, if you’re facing a DUI, the court will automatically see you as a higher risk JUST BECAUSE of that fact.

Second, and this ties in with what we just examined, the concern in a DUI isn’t limited to your currently having an alcohol problem, but also to your being at risk to develop one down the road. This is huge, because it provides an almost unlimited palette of reasons the probation officer (who administers the screening test and then recommends to the Judge what should happen to you) can use for justifying counseling or treatment. Let’s be clear about one thing: This screening process is not about you being seen as a kind of “blank slate” that may or may not need some level of alcohol educational or rehabilitative services. Instead, when you have picked up a DUI, there is a kind of presumption that your relationship to alcohol is troubled (the court will remind you that it certainly was on at least one occasion – the day you got arrested for drunk driving) and the burden falls squarely upon you to demonstrate otherwise.

Third, the “tests” used by the court system to screen for the risk or presence of an alcohol problem are almost always low quality, meaning not clinically reliable, because it is the probation officer, and not a clinician, who hands it to you and then “scores” it. The kind of test that probation officer puts in front of you is a far cry from the kind and quality of test that you’d take if you were being screened by a real clinician. That’s the bad news; the good news is that because of my knowledge and training, I can show you exactly how to make sure you “score” well on any of these, especially those of the caliber used by probation officers. Sometimes, and with certain “tests” the better answers are counter-intuitive. Remember, the whole point of these “tests” is to determine if you have, or are at risk to develop a drinking problem. If you’re going to do well, then you need to know how the whole concept of a drinking problem is assessed, and there was a profound change in that just over 2 years ago when the DSM-IV, and its two diagnoses of alcohol abuse and alcohol dependence gave way to the DSM-V, which replaced those with the single diagnosis of “alcohol use disorder” in mild, moderate or severe manifestation. For as complicated as this may sound, the point is that I understand precisely how this works so that you don’t have to.

Fourth, the probation officer responsible for administering and scoring this “test,” and then using those results and deciding what to recommend to the Judge by way of counseling or treatment, has a very limited and one-sided view of things, and this works against anyone facing a DUI. A substance abuse counselor will actually treat people, seeing that what works for one person doesn’t work for another, that some people get better sooner than others, and many never do, and that AA isn’t for everyone. A probation officer, however, is forced into a role of having to “play” clinician without ever being able to follow up on what works and what doesn’t. He or she has no clinical training and no clinical experience. Add to that the fact that everyone seen by a probation officer has been convicted of driving drunk and that the probation officer never sees anyone for whom drinking has NOT led to trouble. Without any formal education in the addictions or counseling field, without having treated a single person, and without having ever explored the spectrum of available counseling, education and treatment options, the probation officer is, by law, required to “diagnose” whether you have or are at risk to develop a drinking problem and then recommend what kind of help you need in a situation where your only known contact with drinking resulted in a DUI arrest. It should not, then, come as a surprise that you wind up being seen as a member of a high-risk group before you ever say a word or anyone even knows your name.

Here’s the thing; every Judge, in every city, and in every case, is overwhelmingly inclined to follow the probation officer’s sentencing recommendation, and pretty much to the letter, at that. In other words, if the probation officer sees you as someone who needs or simply might benefit from counseling, that’s what will happen to you. When the probation officer recommends counseling, education or treatment, there isn’t a Judge on the bench who will disregard that or wind up ordering anything substantially different. It really doesn’t matter who your lawyer is – unless it’s me. Even with me by your side, it should be obvious that the first order of business is to do well at the assessment stage and avoid a recommendation of counseling, education or treatment. This is my world, and this is where I can make sure you know how to avoid the pitfalls and traps of the assessment process. In short, I can make sure you that you do as well as possible and get the most favorable recommendation manageable. Remember, the probation officer’s recommendation is essentially the blueprint for what the Judge is going to do anyway. Of all the things you can do in a DUI case, your investment of time here will always pay the greatest dividend.

Even if you don’t do so well at your assessment, I can still usually save the day. Because I speak the language of the clinician, I can usually point to some shortcoming in the probation officer’s evaluation, or the conclusions he or she reached, and convince the Judge that a more accurate and clinically sound assessment should be done. Because of my ability to argue from both the legal and the clinical side of things, it is hard for a Judge to rule against me, when all I am asking for is a more thorough and reliable evaluation after having pointed out legitimate concerns with the “assessment” done by the probation officer.

If you’re following this closely, then you will have picked up something rather obvious: We try and get a favorable recommendation from the probation department in the first place, and, if so, we go with that. If things don’t work out so well, then I can usually find plenty enough issues with probation’s evaluation to convince the Judge to order another, better assessment from a real substance abuse counselor. And while that doesn’t guarantee any particular finding thereafter, there is a much higher risk of “over-diagnosis” from an amateur evaluation done by a non-clinician than there is when an evaluation is completed by a real substance abuse counselor.

I could go on forever (and the poor reader might fear I will), but the key point here is that the most important part of a DUI case is the alcohol assessment. It determines what will happen to you. In this area, I can be of nearly priceless help precisely because I bring a lot more to the table than just a law degree and a lot of courtroom experience. As I pointed out before, results in a DUI case are best measured by what does not happen to you. To produce this kind of outcome requires, in the first place, knowing what’s most important, and then specifically what to do about it. As we’ve seen, the alcohol assessment is really the most important aspect of any DUI case that doesn’t get tossed out of court. Now, proceed with caution and understanding.

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