This will be an article about “testing” in Michigan DUI cases. As a DUI lawyer who concentrates his practice in Macomb, Oakland and Wayne Counties, I have watched as testing as a condition of bond (release) has grown to become the normal operating procedure in most Detroit-area courts. As a term of DUI probation, testing (both breath and urine) has become almost universal. My inspiration for this installment is about half editorial and half informational; half of me is frustrated at the whole system and the sometimes unreasonable burden it places on people facing an OWI charge, and the other half of me wants people to understand this whole “testing” business, including, not coincidentally, the business of testing. The other day, a client called my office upset that he may violate the testing requirement of his bond. He’s a decent, honest guy, and his concern was that no matter how hard he tries, how much water he drinks, or how long he waits, he cannot provide a urine sample with someone watching him. This might be funny in another context, but not when his shy bladder has the potential to put him in the crosshairs of being sent to jail.
In a recent blog article about how a DUI can just “happen,” I noted that an important part of my job as a DUI attorney is to play the role of diplomat, and help translate to each side what the other means, and why certain things are the way they are. This means that I have to explain to the client how things work, and why. Sometimes, there is no “why,” and things are just the way they are. On the flip side, (like in the case of the guy who can’t pee) I have to explain to the court how, despite appearances, my client is not simply disregarding its orders. This installment will be my attempt to explain the court’s side of things to the reader as well as providing an opportunity to vent some of my own frustration about the problems caused by all the “testing.”
It has been empirically validated that separating a person from alcohol is one of the best ways to help him or her get sober. It is also well known that DUI drivers, as a group, have a higher incidence of alcohol problems than the population at large. Given the automatic statistically increased risk of having a drinking problem DUI drivers bring with them, it is understandable that the court system likes to keep them away from alcohol. Of course, doing this flips the presumption of innocence concept on its head, but that is a very deep subject best saved for another time. For now, what matters is that many, if not most people arrested for DUI will be required to provide either a breath or urine sample during at least part of the time their cases are pending in court, and it is often a great big hassle that causes all kinds of headaches…
This is where I repeat that sometimes, explaining why things are a certain way is simply a matter of saying “That’s just the way it is.” We’ll never have more than a vague idea of exactly how many bad things have not happened by requiring DUI drivers to test as a condition of bond, but we know for sure that society, as a whole, has not been harmed in any way because of it. It may suck that someone can’t have a glass of wine at a special dinner, but it is certain that nobody is going to die because he or she can’t drink. You need to also keep in mind that when a Judge learns a DUI defendant has missed a test, or that his or her results have come back positive, it reinforces the perceived “need” to keep on testing. Every positive test confirms that despite being told not to, a certain percentage of DUI defendants drink anyway. One thing you will never see is a Judge deciding that he or she is not going to test anymore. In fact, the only thing you’ll ever see is an increase in testing. It has already become almost universal and it has become big business, as well, with more and more testing facilities competing for a piece of the ever-growing and very profitable testing market.
A lot of testing violations involve a person having missed a test or tests. Judges are, somewhat understandably (emphasis on somewhat), impatient with the failure of someone to do what they have been ordered to do. What Judges don’t see, however, is the reality of the burden that these requirements can place on someone. Testing usually takes place only during certain hours. For example, JAMS, one of the largest testing outfits in the Tri-County area, has the following hours: Monday thru Friday, from 6:30 a.m. to 9:00 a.m. and from 5:00 p.m. to 7:00 p.m., and Saturday and Sunday, from 6:30 a.m. to 9:30 a.m. If this is horribly inconvenient, or you don’t have transportation during those hours, too bad. If you have to juggle work and/or kids, too bad. If you are forced to rearrange your life to keep this schedule, too bad. If you can’t, too bad.
For every way you could even imagine something going wrong and interfering with or otherwise getting in the way of someone testing, I’ve seen it happen in real life. Of course, the big fear (and judicial presumption) is that someone misses a test because he or she knows the result would be positive. Better to take the heat for missing a test, even to the point of it being assumed you drank or used, than to provide a sample that confirms it, right? But the hard reality is that not everyone misses a test because he or she drank or used. There are literally countless reasons why a person may miss a test, yet fear of detection is just ONE of them. Sounds reasonable here, but try showing up cold and selling that one to an already irritated Judge.
Then there’s the money. I understand these testing facilities have a business to run, but to charge someone $10 to take a quick breath test is robbery. The most expensive units out there cost about $800 (and there are endless choices for less). The unit has already paid for itself after its first day in service. The rest of that cash is pure profit (note to self: forget this lawyering stuff and look into breath testing after putting up this article…lol). Urine tests cost even more. When someone is paying an additional $40 a week, every week, for months on end it can really add up. Sure, we realize that it’s kind of a self-inflicted punishment, but in the real world, all this burden, expense and inconvenience can all converge in a way that makes someone miss. Or, as I often see, become overwhelmed and stressed out. More than one time I’ve heard the half serious joke that the chaos of having to keep up with the testing was enough to drive someone to drink
There is no perfect solution here. Cellular technology has given rise to a very small, portable breath testing unit (a popular brand is called “Soberlink“) that a person carries and blows into when required. The machine snaps a picture to confirm that the right person is providing the sample. This kind of unit is costlier than periodic testing, and it generally requires a person to test at least a couple of times per day, but aside from cost, it has little downside. An older, but still used method to insure compliance is an alcohol detection ankle bracelet, called a SCRAM tether. The reliability of these units is not exactly settled, and they are quite bulky, to boot. If you’re a woman, and whether you like Hillary Clinton or not, you are going to be wearing nothing but pantsuits for a while, just like she does, if you wind up getting this clunker put on your leg.
Imagine we said all this to a Judge. While you might think that the Judge might respond, “Well, you should have thought about that before you got arrested,” that’s not what our imaginary jurist would say (remember, (ahem…) you are presumed innocent). Instead, a Judge could easily reply that there is absolutely no requirement that you test. You’re not being forced to do anything. You can skip the testing, if you’d like, but you can’t get (or stay) out of jail unless you do. In other words, testing is a condition of your release, and if you want to stay out of jail, you are agreeing to it. You can change your mind and decide it’s not worth it and not test anymore, but you’ll be headed back to the pokey as a consequence. In all my years, I’ve never had anyone openly choose jail over testing.
Like so many things in life, this becomes a balancing act. Courts impose testing and figure they’re doing the right thing and protecting the public and limiting risky drinking behavior. DUI defendants submit to testing and go through various degrees of hell with it, grumbling about the burden, expense, inconvenience, and general lack of fairness. DUI lawyers like me get stuck in the middle. I see the court’s position, but I feel my clients’ pain, as well. Every day, I do my best to make this as smooth as possible for my clients, and just about every other day, I have to explain away some testing problem (including positive results) to a Judge for one client or another. As I observed earlier, we’ll never get a full count of how much tragedy has been spared by requiring DUI drivers to test, but we can sure get a feel for how much misery the testing has caused in their lives. I live with the fallout of testing and the impact it has on the lives of real people. Accordingly, and while I understand the rationale for testing, I’m not a cheerleader for it. My job is to minimize consequences, and as we’ve seen, testing seems to create a lot more of them by virtue of its very existence.
This article probably didn’t reveal anything you did not already know, except that perhaps, as a DUI lawyer, I truly understand what you’re going through. Still, it gave me an opportunity to vent a bit, so I feel better for that, and perhaps I clarified, if not merely reiterated the court’s position on testing. If you’re facing a DUI anywhere in Macomb, Oakland or Wayne County and are looking to hire a lawyer, do yourself a favor and exercise your best consumer skills. Read the articles lawyers have put up. When you’re ready to ask your own questions, pick up the phone and call around. To get my take on your situation, call my office anytime Monday through Friday, from 8:30 a.m. until 5:00 pm. We’re here to help, and can be reached at 586-465-1980.