Counsel has an obligation to the client to point the direction to help.
Of the many ways a lawyer can lose a client, probably none is more effective than for the lawyer to say, "You are an alcoholic." Or, "You have a problem with liquor." Or, "You got arrested because you were drunk."
Nevertheless, the lawyer who does not learn to identify, assess, and advise the client who is a problem drinker and may be an alcoholic cannot adequately serve that client, and may unwittingly do more harm than good. Moreover, as a practical matter, there are many, many people who suffer from alcohol abuse, so that there is hardly a lawyer who will not meet such a client. This article will discuss those topics, and will offer the practitioner one or two proven ways to deliver the necessary message while keeping (and helping) the client.
Certain areas of legal practice are more likely to expose counsel to substantial numbers of clients for whom alcohol is not a take-it-or-leave-it proposition. DUI defense is one obvious category, and one where attorneys expect some clients to have persistent alcohol-related legal problems. Other areas of concentration, however, require counsel to recognize that alcohol is a factor because the client or other or additional parties are victims of alcoholism. Counsel must be alert for the fact that the victim and witnesses in a criminal case may be alcohol involved as well as or instead of the defendant. See McGlynn v. State, Case No. 96-1953 (Fla. 4th DCA, July 30, 1997) (defendant was sober, but the perceptions and testimony of the victim and most prosecution and defense witnesses were significantly affected by alcohol). And alcohol is a central feature in many family law cases, where either or both of the parties may abuse alcohol, and the entire family will inevitably be affected.
The aim of this article is to help attorneys provide effective legal assistance to an alcoholic client whether that is the card that is face up (as in a DUI case), or face down (as in family law, bankruptcy, criminal law, or some other area of legal specialization). For the purposes of this discussion, the assumption will be that alcohol is a significant factor in the client's life, whether the client (or the lawyer) is yet ready to admit it.
Driving Under the Influence
First time arrests for DUI are as common to non-alcoholics as to alcoholics, so how does the lawyer, meeting the client for the first time, tell which category is represented by the frightened soul who is sitting in the visitor's chair at the initial interview? At this early stage of the relationship, counsel must survey the wreckage with a clear eye. For example, the circumstances of the arrest may tell the advocate much about the client's real situation vis-a-vis alcohol. A high breath or blood alcohol reading without many outward signs of intoxication is often an indicator of alcohol addiction, as habitual users learn to function superficially well after taking on a substantial quantity of booze. Other factors that should be noted by the attorney in determining whether the client is probably an alcoholic include the client's involvement in a one-car crash, presence of a high-income client at a low-income tavern, the client's solo drinking, late night bar-hopping by the client on a week night, or the client's daytime DUI arrest. While there may well be innocent explanations for such circumstances, these are not typical occurrences for nonalcoholics.
Violence in word or deed toward the arresting officer, rescue workers, or the defendant's companions or spouse should further alert counsel to the likelihood of the client's alcohol abuse, while a client who was ejected from a bar or was denied further service is frequently an alcoholic.
Undoubtedly, the greatest confirmation of counsel's suspicions that the client is an alcoholic is a prior conviction for DUI. A prior arrest is a persuasive indicator, but a prior conviction, especially in Florida2 since 1990, should cause counsel to assume that the client is indeed an alcoholic. This is so because the cost, inconvenience, and embarrassment that a DUI conviction has imposed since the 1990 enactment of F.S. §322.2615 are so onerous that no rational person would voluntarily repeat the experience. In 1990 the legislature added preconviction driver license suspension and restricted driving on a special license, post-conviction mandatory probation, community service hours, alcohol counseling, further and possibly different driver license restrictions, and a permanent criminal record — what person who could avoid it would risk a second DUI arrest after going through this process once? The answer is, a person who is not "sane" to the degree that he or she cannot put the cork in the bottle.
The legislative scheme set out in the substantive DUI statute, F.S. §316.193, is remarkably reality-based. Possibly the experience and/or observations of the legislators themselves were an inspiration to the lawmakers. Counsel who suppose that they can litigate their client's way out of some of the statute's horribles need only note the appellate courts' unanimous stand against such efforts. In Lindsay v. State, 606 So. 2d 652, 655 (Fla. 4th DCA 1992), the appellate court noted that the "scope of the discretion given to trial judges under these [probation] statutes is breathtaking" in upholding the imposition, on a first offense DUI, of a condition that the defendant insert and pay for a newspaper ad with his "mugshot, name and caption as `DUI-convicted.'" The court had no difficulty in sinking the argument made on appeal that making Lindsay place the ad "violate[d] the rehabilitational process," saying,
The hope that the sinner will sin no more, that he will be rehabilitated, does not compel the conclusion that he is relieved of the obligation to do penance for his past offenses. At least the Florida legislature did not think so.
In State v. Haddix, 668 So. 2d 1064, 1065 (Fla. 4th DCA 1996), the court affirmed a legislatively-mandated adjudication of DUI, "second offense within three years, 60 days in jail, one year probation, [and] a $500.00 fine," at 1065. Part of the trial court's sentencing order was reversed: The defendant's three-year driver license suspension was set aside — in order to impose the mandatory five year revocation.
Since 1993, §316.193(6)(d) has mandated vehicle impoundment (in addition to all the other restrictions and expenses already part of the sentencing plan), an irksome condition made more annoying by the statute's requirement that the defendant's car (or the car the defendant was driving at the time of the arrest) be taken away at the end of the probationary period, just when it appeared that the nightmare DUI process was finally about to end. Although at first it was widely thought that impoundment would be struck down as an unconstitutional provision, the question was settled adversely to the defendant in State v. Ginn, 660 So. 2d 11 18, 1120 (Fla. 4th DCA 1995). The court held that limited deprivation does not require more constitutional protection than the permanent takings approved in forfeiture cases, and the inability to afford to hire a leased car — "or even a chauffeur driven limousine" — while defendant's car is impounded "does not produce an invalidity of equal protection or due process." The court made the unarguable point,
By the time of the conviction, the owner [of the vehicle] here had been arrested, given formal notice of the charges, had the assistance of counsel, and had the opportunity to have the case tried to a jury.
Id at 1119.
As the Ginn court unsympathetically opined, "All persons are presumed to know the contents of criminal statutes and the penalties provided within them," so the individual who would willingly expose himself or herself to this process a second or subsequent time must be presumed, by defendant's counsel at least, to be unable to resist the use of alcohol.
Voluntary Intoxication, Alcoholism, and Fetal Alcohol Syndrome
It is also worth calling the practitioner's attention to the criminal offender whose slavery to alcohol may be either overlooked or taken for granted, to the disservice of that client. Probably most practitioners are aware that voluntary intoxication is not a defense to DUI, and in fact voluntary intoxication is a defense only to "specific intent" crimes, like first degree murder. See Linehan v. State, 476 So. 2d 1262 (Fla. 1985) (voluntary intoxication defense did not apply to a general intent crime such as arson; trial court did not, therefore, err in refusing to instruct the jury on that defense; new trial ordered on other grounds). Nevertheless, alcohol addiction should be brought to the attention of the court in a proper case, even as drug addiction routinely is, because treatment is available, and ought to be considered by the court, even in these days of woefully rigid sentencing guidelines.
It is up to counsel to make the appropriate presentation to the court. In order to do so, counsel must have a substantial body of information about the client's background (criminal, social, addiction-related), as well as available recommendations about treatment options: in-patient and out-patient treatment programs; locked facilities, and community-based centers such as halfway houses. While this may seem like a lot of homework to do for one client, the fact is that alcohol is pervasive, and often goes unidentified or unaddressed in the criminal justice system. After all, as a legal substance, mere possession or use of alcohol is a nonevent for the police and prosecution. However, even casual questioning of clients who are facing criminal charges routinely turns up evidence of alcohol abuse, and any preparation an attorney does in litigating or preparing for sentencing in one case is likely to be utilized to the benefit of other clients.
Counsel's preparation for a capital trial not only should focus on voluntary intoxication as a possible defense in the guilt phase, but also should consider that alcoholism is a potentially powerful mitigating circumstance that should be thoroughly investigated and presented to the jury by defense counsel in the sentencing phase. See Voorhees v. State, 699 So. 2d 602, 614-615 (Fla. 1997) (evidence that defendant and victim both intoxicated, and expert evidence that defendant "began drinking at an early age, suffered from alcoholism, and had an abnormal reaction to alcohol" led to court's conclusion that death was not a proportionate penalty for defendant; death sentence vacated, case remanded for imposition of life sentence).
Often the centrality of alcohol is either overlooked or discounted in planning trial strategy in a capital case, perhaps because it is so pervasive in the lives of many Floridians. Nonetheless, the science exists to aid the practitioner in mounting a substantial defense based on the defendant's abuse, and perhaps on alcohol abuse in the defendant's birth family, if there is evidence that the defendant suffers from fetal alcohol syndrome (FAS) or the only slightly less deadly fetal alcohol effect. FAS and its effects have been well documented by respected authorities, and, in a proper case, may correctly explain a defendant's pathological behavior, which truly originated in the womb and is a result of the mother's alcohol abuse.
FAS, unlike most psychological or psychiatric afflictions, can be diagnosed, at least in part, by certain facial characteristics that together help to make up the syndrome: "short eye slits, low nasal bridge, short nose, an indistinct philtrum (the ridges running between the nose and mouth), flat midface, small chin, and narrow upper lip." The child's growth, to the extent of height, weight, and head circumference, are also likely to be substantially below normal, and common central nervous system effects include mental and motor retardation, hyperactivity, and poor attention span. Common to FAS children is "poor social judgment and lack of impulse control."
The question of "why" has never had much meaning for (a person who is a victim of FAS); the kind of cause-effect relationship it implies does not compute for him.
There is extensive literature available to the researcher on this syndrome, which, identified only in the 1960's, has been found to inflict large populations, particularly among Native Americans. FAS is, however, not limited to any particular group; fetal alcohol syndrome may affect the child or children of an alcoholic woman regardless of the parents' race or ethnicity.
Because one of the most serious effects of FAS is the inability of the person afflicted to develop an understanding of the consequences that will necessarily result from one's actions, FAS and FAE turn up regularly among offender populations.
The Lawyer's Role
With all of the foregoing in mind, counsel has an obligation to the client to point the direction to help, because alcoholism is a progressive disease, and a first DUI (or other unpleasant court-related consequence) is likely, if not inevitably, to be followed by repeated or further disasters. Attorneys in this age of lawyer-bashing often forget how influential they are in the client's life. Counsel's suggestions, like those of employers, are obeyed where friends', parents', and spouses' pleas may fall on deaf or hostile ears. Attorneys are often unaware of their power, or are reluctant to exercise it in this delicate area. Knowledge of alcoholism, awareness of its progress, and candor in explaining the facts of alcoholism, the options for treatment, and the consequences if the problem is not addressed are the tools that a lawyer can effectively use, even if the client appears to be in complete denial. The lawyer, unlike a spouse or other family member, is not interested in remorse ("I promise not to do it again"), or in an admission from the client ("I am an alcoholic"). Nor is counsel concerned with the "morality" vel non of alcohol use or abuse.
For the lawyer, it is sufficient if the client follows counsel's instructions. For counsel's purposes -- keeping the client alive, out of jail, not rearrested, and employed so that the fee is paid — compliance with directions is required, nothing more. Thus, it is not necessary for counsel to break through the client's denial. It is enough for the client to do what the lawyer says; the client need not feel or express any enthusiasm for this acquiescence.
This "acting as if" turns out to fit the goals of treatment very well, while it also happens to work in the attorney-client relationship, allowing the practitioner to continue to do what lawyers do best, preventing enmeshment in the client's life by the attorney, and avoiding disappointment for the lawyer if the client does not successfully avoid unemployment, jail, or death. On the other hand, if the client does embrace recovery, the client is able to help the lawyer provide the most effective legal assistance, and the client may even (although not always) credit the lawyer with the client's improved situation and feeling of well-being.
So, what should the lawyer recommend to a client who presents with indicia of alcoholism? Evaluation by hospital or treatment center professionals is ideal — all such reputable facilities also introduce client-patients to the 12 Step program of Alcoholics Anonymous. If such an evaluation (which may take hours or days) is not economically feasible, the lawyer should:
- provide a local telephone number for Alcoholics Anonymous;
- give a current "where and when" to the client; and
- help the client select a convenient meeting to attend that day, urging attendance.
While counsel cannot make sure that the client actually goes, such concrete directions are more likely to be followed than is a vague suggestion from the lawyer that the client "get help."
Some clients, even those who are forced to admit their powerlessness over alcohol, may be resistant to suggestions for treatment. The lawyer can (and many do) make adherence to a treatment plan a condition of continuing the representation. Usually, the most effective incentive is the probable favorable effect on the judge of action actually taken to clean up the wreckage that brought the client to court in the first place. And if an appearance before a jury is likely, the client who has finished trembling uncontrollably, whose eyes are clear, and who is sober enough to come to court without a jar or two for courage, will make a more favorable impression than a person who has taken no steps along the sober road. These practical effects may persuade a reluctant client to go along with treatment plans, where tears, threats, and promises have all failed.
The most critical concern for the attorney who is called upon to represent a client for whom alcohol has ceased to be a "recreational drug," is to make an accurate assessment of the client's involvement with this legal but often lethal substance. To err on the side of "probably is," rather than "perhaps isn't" is the better choice for the concerned lawyer, whose goal is to obtain compliance with an evaluation and treatment plan, rather than verbalization of an agreement with a diagnosis that may have no long term validity, and is, in any event, of little assistance to the effective advocate or the client in need.
*article courtesy of Nancy C. Wear, an associate in the Miami firm of Patrick C Barthet, P.A.