In previous articles about Drunk Driving, I have pointed out that the most important "step" in a DUI case is the legally required alcohol assessment. Lately, within the context of my DUI Practice, I have handled an increasingly large number of 2nd Offense cases for people who had some other Lawyer represent them in their 1st case. I have repeatedly been told by them that their prior Lawyer never so much as mentioned preparing them for this step (the Alcohol Assessment). Then, when they came across my blog articles describing how important this step is, and how much of what happens at this point affects the outcome of the case, they immediately recognized, from their prior experience, how true this is, and called me. In previous articles, I have outlined the steps in a DUI case. This article, which will be separated into 2 parts, will focus on one of those steps: The Pre-Sentence Investigation and the Alcohol Assessment Test that is a required part of that. More than 20 years ago, as a young Lawyer handling DUI cases, I saw that what actually happened to the Client in a DUI case, meaning the results of a person's Sentencing, was almost identical to what was Recommended as a Sentence by the Probation Department. In a DUI case, after a person has worked out some kind of Plea arrangement, the Court sets 2 dates. The first of those dates is a return date for the Client, and the Client alone, to come back to the Court for an interview with a Probation Officer, who has the job of preparing a written Recommendation for the Judge to be used at Sentencing. The Law requires that such a Recommendation be based upon the person's score on an Alcohol Assessment Test. This means that a person will show up to the Court's Probation Department, take a written Assessment Test, fill out an information packet which asks about their background (a short life-history), and then meet with a Probation Officer for an interview. This process is called a "PSI," meaning Pre-Sentence Investigation. The result of this whole process is a written Sentencing Recommendation to the Judge indicating what should be Ordered for each particular person facing a DUI. The second of those dates is the Sentencing itself, where the Judge decides what will be done to the person facing the DUI. And the reality of the situation is that in each and every Court out there, and in each and every case, the Judge will follow that Sentencing Recommendation, if not to the letter, then darn close to it. 20-plus years ago, as a young Lawyer, I realized that no matter what was said at the Sentencing, no matter if the O.J. Simpson Legal Dream Team, the Pope, the President and the Chief Rabbi of Rome all showed up and spoke great things on behalf of the person being Sentenced, the Judge might well indicate how impressed he or she was, and thank everyone for their time, but then go ahead and follow the Recommendation of the Probation Department of his or her Court. Remember, it is the Court's own Probation Department making the Recommendation. The Judge deals with these same people every single day. It then occurred to me that in order to impact the outcome of the case, the Lawyer needed to intervene BEFORE the person went in an was tested and interviewed. Things said to the Judge AFTER that PSI Report has been written may sound good, but can only have little to no impact on what is ultimately Ordered. In other words, the Judge is going to follow that Recommendation to a "T," or so close to it that any deviation could be considered negligible, at best, despite all the great things the Lawyer might thereafter say on behalf of his or her Client. Having been through this whole deal before, my 2nd Offense Clients recognize how accurate that assessment is. They may have little idea of how much being properly prepared for the PSI can matter, but they recognize that, having walked in without preparation before, and seeing that the Judge did, in fact, follow the Recommendation in their prior case, this is clearly their only chance to have any impact on limiting the consequences of what will happen to them at Sentencing. I usually begin the PSI preparation process with a Client (and this usually takes a few hours' time) by telling the Client that although I was not there at the time of their prior case, I can safely say that whatever was Recommended in by the Probation Department is exactly what happened to them, or so close to it that any difference was meaningless. In EVERY case, my Clients nod in agreement. There really is no way to reduce what takes me several hours Office time to explain to something concise enough to fit within a blog article. However, one can get a general sense of things by breaking the PSI process into its 3 main areas of inquiry and impact: 1. Where you've come from, 2. Where you're at, and 3. Where you're going. The first part, where you've come from, is a way of describing the "background" part of the PSI process, wherein the person fills out forms detailing their childhood, upbringing, education, marriage, employment, health, and alcohol and drug use history. In some Courts, this information is obtained in a question and answer format with the interviewing Probation Officer, while in others there is an informational packet to be completed. Sometimes, it is a mixture of both. At this point, the strategy is more about avoiding troublesome answers more than anything else. For example, a divorced woman, facing a DUI, who indicates that she was previously in an abusive marriage, is going to raise all kinds of red flags above and beyond the mere DUI at issue. While such a situation may give rise to some sympathy, it is also likely to give rise to a recommendation of extensive Counseling. The second part, where you're at, involves an assessment of the person's current situation. This includes the Alcohol Assessment Test. In general, these standardized tests (there are any number of them: Several versions of the M.A.S.T. (Michigan Alcohol Screening Test), the N.E.E.D.S. Assessment, the A.U.P. (Alcohol Use Profile), and a bunch of other acronym-based diagnostic tools) are given a numerical score, or scores. Generally speaking the higher a person scores, the more likely they are to develop or to already have an alcohol problem. Conversely, the lower they score, the better. My job, of course, is to help the Client avoid a higher score. Beyond the Alcohol Assessment Test, the stability of a person's current living situation, or at least their perception of that, is an important factor in the PSI process. If a person had recently been separated from a partner or spouse, or laid off, or fears a layoff, or is losing a house, or is otherwise facing some difficulty or other, then it can be seen as a potential "issue" that may impact a person's drinking behavior. The third part, where you're going, is really more of what Probation decides a person should and should not do, more than anything else. In other words, "where you're going" means what kind of Classes and Counseling and other Conditions the Probation Officer feels a person should do, and therefore Recommends. In part 2 of this article, we'll pick up by examining the Alcohol Assessment Testing process in more detail, and we'll examine the role of the Probation Officer in the PSI process.
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