When Your Drinking is NOT a Problem
Part of our responsibility, as Michigan DUI lawyers, is to help our clients understand the court system’s concern about their drinking within the context of a pending case.
Especially in High BAC, 2nd and 3rd Offense OWI cases, it is meaningless to merely say “I don’t have a problem.”
As a starting point, it is imperative for anyone facing a DUI to understand how the court system is going to perceive them, and what actually needs to be don to make things better.
Of course, staying out of jail is the first order of business in any and every DUI case.
However, once my team and I have accomplished that - and we usually do - no one is going to feel particularly “lucky” if they wind up getting slammed with all kinds classes, counseling, treatment, testing, and community service.
Especially if it’s because the court believes or suspects that the person has an issue with drinking.
When a 1st offense DUI case is handled properly, most courts can be made to understand that the whole incident is really a one-off, and out of character for a person, and not some indication that he or she has an alcohol problem. This, of course, assumes that’s true.
To do this, a person has to do more than just say “I don’t have a problem!” What’s needed is to actually back that up.
This all changes, however - and rather dramatically so - when a person picks up a 2nd or 3rd Offense DUI, or even a High BAC charge.
Under Michigan law, anyone convicted of a 2nd DUI within 7 years, or 3rd within 10 year, is categorized as a “habitual alcohol offender.” As a consequence of that, every such person is legally presumed to have a drinking problem of some sort, and, consequently, must be ordered to complete some kind of counseling and/or treatment as part of the sentence for his or her case.
While this categorization and presumption does not legally attach to High BAC offenders, every Judge out there is certainly skeptical when anyone whose alcohol level tests out as more than twice the legal limit (over .17) comes forward and insists his or her drinking is normal.
In other words, the judicial system automatically assumes every 2nd or 3rd DUI offender has a drinking problem, and is inclined to do the same in High BAC cases, as well.
In that way, High BAC Offenders are just seen as "riskier" than someone facing a 1st offense DUI with a lower (and often much lower) bodily alcohol content test result.
There is one reality, though, that underlies everything about DUI cases - the inherent “alcohol bias” in the court system. Rather than turn this section into a clinical analysis, we’ll do a more simplified overview here, although I have created an entire "Alcohol Bias" section on my blog for this topic because it’s so important.
Multiple studies have confirmed that, as a group, DUI drivers have a higher rate of drinking problems than the population at large. Here’s the easiest way to explain it:
Assume you are instructed to go out and get a random sampling of 1000 people, and you are told that it does not matter how or where you find them (you can get all 1000 from Michigan, or 20 from each of the 50 state, or 500 from the east coast and 500 from the west coast) but that the ONLY requirement is that they be adults of normal intelligence. You are to call these people “Group A.”
Next, you are instructed to do the same thing all over again, and get a random sample of another 1000 adults of normal intelligence, except that for this group, everyone must either be currently facing or previously convicted of a DUI. You are to call these people “Group B.”
No matter what substance use screening instruments are used, no matter how many times they are screened, and no matter how many times you repeat the experiment, “Group B” will ALWAYS test out with a higher rate of drinking problems than “Group A.”
The alcohol bias is ever-present in DUI cases, largely exists beneath anyone’s consciousness, and, in addition to everything else, is rooted in fact.
In other words, everyone facing a DUI is subject to it.
Thus, anyone appearing in court for a DUI is correctly seen as being at increased risk of either having, or at least having the potential to subsequently develop a troubled relationship to alcohol.
As a consequence, the courts always take a “better safe than sorry” approach to DUI offenders.
The good news is that almost every Judge on the planet would rather send someone to treatment and help him or her rather than just send him or her to jail for punishment.
The bad news, though, is that no Judge is going to lose any sleep over the idea that, instead of just having locked someone up, he or she ordered the person to to take more classes and/or do more counseling and/or undergo more treatment than may have been necessary.
Of course, every person going through a DUI would rather have to go to more classes, attend more counseling, or undergo more treatment than serve jail time, so there is a kind of balance.
Even so, at the end of the day, it can still be a nightmare to be seen and treated as having a problem you don’t, or otherwise being required to attend (and pay for) unnecessary classes and/or counseling, or, worse yet, to have to undergo and comply with treatment for a problem that doesn’t exist.
As experienced Michigan DUI lawyers, we know that it won’t help for anyone facing a DUI to merely insist that he or she don’t have any kind of problematic relationship to alcohol. Instead, we have to show that to be true.
In large part and specifically because of the alcohol bias, it falls upon us to persuade the Judge to see things differently; that’s what being a good Michigan DUI lawyer is all about.
Avoiding a “probation from hell” sentence requires navigating through the trickiest parts of any DUI case that isn’t otherwise “knocked out” by a successful challenge to the evidence, and that included making clear that our client does not have any issue with his or her alcohol use.
Remember, the court’s focus in every DUI case is always going to be on that relationship to alcohol.
For me and my team, that means have to confront and refute the “alcohol bias” and protect our client from the kind of over-diagnosis that can otherwise give rise to unnecessary classes, counseling, and/or treatment, not to mention other burdensome probation requirements.
The goal in every DUI case is to make sure our client DOESN’T get stuck in classes and counseling that are not needed, and that he or she gets through the DUI with as few consequences and penalties as possible.
This begins by making sure he or she understands the realities of the system and how we’re going to maneuver through it successfully.
To do that, my team and I have to help each client step back and take a more objective look at his or her situation. We know how the court is going to see things, but it’s critical that the client does, as well.
Our practice concentrates specifically in DUI and driver’s license restoration appeals, and we guarantee to win every driver’s license restoration case we take. Practicing in each of these areas makes us better in the other.
A person’s driver’s license will be revoked for racking up 2 DUI’s within 7 years, or 3 within 10 years.
Winning a license appeal case requires a person to show that he or she has overcome his or her alcohol problem and is genuinely sober (remember, anyone with 2 or more DUI’s is categorized as a “habitual alcohol offender” and presumed to have a drinking problem).
This is done by proving 2 things by what the law defines as “clear and convincing evidence”:
First, that he or she has been completely alcohol-free for a “legally sufficient” period of time (our firm generally requires a person to have been abstinent for at least 18 months), and,
Second, that he or she has both the ability and commitment to never drink again.
To be good enough to guarantee to win every case we take, we need to have a thorough understanding of alcohol and recovery issues, and we do.
As the namesake of this firm, I have been a Michigan DUI lawyer for over 3 decades. Years ago, precisely because of my chosen field, I returned to the University classroom and completed a formal, post-graduate program of addiction studies.
Through that, I gained a thorough understanding of the development, diagnosis and treatment of, as well as recovery from alcohol and substance abuse problems. I am fluent in the language and methods of the counseling professionals who diagnose and treat alcohol problems, and my team and I use this knowledge directly to help our clients.
I can say this with absolute certainty: You will never meet another lawyer who knows this stuff as well as I do.
Because of that background, my team and I have a unique skill set we use to help prevent our clients from getting crammed into unnecessary counseling or treatment, and/or wind up forced to attend AA meetings that they hate.
Unfortunately, it is widely accepted in the clinical world, that the judicial system is and always has about 10 years behind in its understanding and use of the modern treatment protocols.
In the real world, courts love sending people to AA. While AA is a wonderful program, the simple fact is that it is NOT the right fit for MOST people.
If one of our clients is having any kind of issue with alcohol, then we want to make sure that he or she can talk to someone who is the right “fit” for him or her, and not just be required see some counselor that isn’t, or to be forced to attend AA meetings.
This is particularly relevant in 2nd and 3rd offense cases, because as we noted, the law presumes that anyone convicted of any repeat DUI offenseI has a drinking problem, and must be sentenced to some kind of counseling or treatment.
In that same way, anyone facing a High BAC charge runs much the same risk, except without the legal presumption of a drinking problem.
This essentially leaves person with 2 choices:
1. He or she can either just blunder into the DUI court process and see what happens - which is the same thing as having no plan at all, or,
2. He or she can hire a DUI attorney that knows what to do to actually help make things better.
The goal in any DUI case is always to avoid as many of the legal penalties and negative consequences as possible. Thus, and as I always point out -
Success in a DUI case is always best measured by what does NOT happen to you.
My team and I live by that standard, and we make sure our clients DON’T get treated for having an alcohol problem that’s not there.
No lawyer can do more, and we will never do less.