EXPERT WITNESS: The harsh truth about drinking (anything) and driving

By Michael G. Brock

It doesn't really matter what line of work you're in; after a while everything seems to fall into a pattern. A new case comes in; it's one of these or it's one of those. It doesn't really take very long to figure out what the problem is or what needs to be done about it. Getting the client to accept the reality of the situation is another matter, though, since this is probably the first time he's been through the situation. Even with that, you can pretty much predict the responses and the path from denial to acceptance to resolution. But every once in a while you run into something you've never seen before and will hopefully never see again.

I had that experience a while back when a former client walked into my office for a driver license evaluation. Actually, she hadn't been a treatment client, she had been referred for a custody evaluation about ten years ago, and the case had a rather happy resolution. They were able to reach agreement on custody and parenting time in my office and therefore, as rarely happens in custody disputes, everyone walked away happy. When she called to say that she wanted a driver license evaluation I was somewhat taken aback because I didn't know substance abuse had ever been an issue for her. She was a nurse, a single mother and one of those super responsible people you just can't see ever getting into any trouble.

The day came to do the evaluation and one of the first questions is, "How many DUIs have you had?"

"One," was her response.

I said, "That's rather unusual; they don't generally pull your license until after your second. What did you blow?"

".05"

I don't have to tell legal professionals that clients don't always tell the truth about such matters, so I thought I'd have to dig a little deeper. Whenever I do one of these evals now I stress that any arrest for an alcohol or drug related crime will show up on the driving record or will be in the possession of the hearing officer, and that one thing you don't want to do in a case like this is minimize the seriousness of your problem with substances, etc. I give them the same spiel about use of drugs other than alcohol:

"Don't tell me you've never done other drugs and then tell the hearing officer you did. This evaluation is the Gospel according to you, and if you change it at the hearing they are going to know you lied either to me or to them. Equally important, they will also accuse me of not doing my job, so tell the truth and make us both look good."

So I was skeptical.

"How could you lose your license for a DUI when you didn't even blow the limit of .08?"

"Well, I turned in front of an oncoming car and misgauged how much room I had, causing an accident. A passenger in the oncoming car was killed. She apparently broke a rib and the rib punctured a lung and she died. She was elderly. We were in the middle of nowhere, miles from any kind of emergency room, and by the time they got her to a hospital she was gone. The case dragged on forever and I was convicted at trial of negligent homicide for having a BAC over .04 and did 30 months in state prison."

We did the evaluation. It was one of very few of these I ever did where I didn't give the person a DSM diagnosis of Alcohol Dependence, but rather Alcohol Abuse (if you can call a drink with lunch alcohol abuse), and went home muttering to myself. The next day I called an attorney who sends me a few of these cases and related the story. His response surprised me.

"Oh, now I don't feel so bad. I had a case where I guy blew .05 and did prison time, but he had a prior MIP, so they treated it like a second offense. I thought I had done a bad job, but your client had no priors, so I guess that MIP really didn't matter. What matters is that this is, for all intents and purposes, a zero tolerance state. If you have a drink and someone dies, you are going to do prison time; not county time, but state time."

My client was an ER nurse and once took care of me when I made a trip to the hospital with chest pains. When she was convicted she lost her driver license, her nursing license, custody of her children and, of course, her freedom. Last I heard, she was still trying to get her life back, and I hope that what I did will help her. She seemed grateful that not all the breaks went against her. Her fiancé stood by her, and a civil suit, filed by the relatives of the deceased was thrown out for some reason.

As well-intentioned as our legal system is, it cannot, nor could it be expected to, address all of life's inequities and unfairness. I've also heard it said that prudent man learns from his mistakes, but a wise man learns from the fool's mistakes. Nevertheless, I don't know exactly what lesson is to be taken from seeing someone totally screwed for doing something that everyone who's ever had a drink and gotten behind the wheel has done, and that most people don't even know is a crime.

I guess "don't get caught" is the most important lesson. I recall seeing in Lawyer's Weekly that someone was convicted of a felony for crossing the center line and killing someone coming the other way while talking on the cell phone, but that seems somehow more reasonable. What would seem fairer would be to make it very clear to the general public that you can't drink and drive, rather than to tell them, "It's illegal to get stopped with a BAC of .08, but it's illegal to be involved in a fatal accident if you've been drinking at all." That, and make it illegal for any bar to have a parking lot.

According to my records this article was first published in August of 2010. What made me think of it now was a piece run on the new PBS Newshour weekend edition on 9/14/2013. It seems that the same year this article appeared there were new laws enacted in British Colombia lowering the allowable BAC to .05. These laws empower police to fine violators and impound their cars for three days on the spot. The effect of the laws has been to lower traffic fatalities by more than fifty percent for the first two years they were in effect. http://www.pbs.org/newshour/bb/law/july-dec13/drunkdriving_09-14.html

It's hard to argue with these results. However, on the negative side there have been complaints from business owners that the laws have negatively impacted their businesses (especially restaurants). Some people have expressed due process concerns, and there has been a successful legal challenge to a driver's license suspension. One thing that wasn't addressed, but which I have often wondered about with regard to U.S. drinking and driving law is, What is the overall effect of so many people without cars or driver's licenses on the state and national economy?

What seems to be increasingly apparent with the passing of time that cars and alcohol are a lethal mix, and that any amount of drinking and driving is an unacceptable risk. Add to this that that many people now text while driving, and that some text while driving under the influence, and there is a growing problem compounded by ever more congested roadways and impaired or distracted drivers.

And though everyone seems to agree that drinking and driving is not acceptable, alcohol has been around for thousands of years and is not likely to go away soon. Moreover, cities with good rapid transit have much less severe problems with drinking and driving than those that don't, and it would seem that more attention needs to be given to this alternative, especially in Michigan, if we ever hope to successfully resolve this issue.

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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; (313) 802-0863, fax/phone (734) 692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com.

Published: Wed, Sep 18, 2013

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