Understanding New York DWI Alcohol Evaluations

In November 2006 the New York State legislature stated that ALL alcohol evaluations and screenings for DWI cases must be performed by OASAS certified evaluators. OASAS stands for Office of Alcohol and Substance Abuse Services. You can Google OASAS to find a certified evaluator and/or treatment provider in your county. Their website is very informative, and fairly easy to navigate.

Legally you must have a “screening” for alcohol abuse/dependency within 30 days of your initial appearance if you had a BAC (blood alcohol concentration) of.12 or higher on your chemical breath test. A screening is merely a written test, it could even be a true/false test.

The next step up in the process so to speak is an “evaluation” for alcohol abuse/dependency within 30 days of the initial appearance if you had a BAC (blood alcohol concentration) of.15 or higher on your chemical breath test. Some evaluators take one long session to perform an evaluation, while some could take up to four sessions to make an evaluation. Cost of these sessions runs about $80 to $90 per session. So one long eval might cost around $175 or four might cost up to $400. An evaluation is an “interview” with a counselor, and could (may or may not depending upon the evaluator) include a urine screen (NOTE: urine tests check for specific drugs while urine screens are general) for drugs. It is also common for the counselor to obtain “collaterals” from you. A collateral is contact information about people who know you and have seen your drinking. These people may or may not be contacted to confirm what you tell the evaluator. The theory is that people with drug/alcohol problems lie, and therefore these collateral sources would be a potential barometer of your truthfulness and/or sobriety.

The next step for the evaluator is to determine whether you are an alcohol/drug abuser and have an abuse diagnosis or you are chemical (alcohol/drug) dependent. This is a critical determination, and should never be taken lightly by anyone.

My problem (I have a great many issues with the process) with these evaluations is that they can be highly subjective. The evaluators opinions carry a lot of weight for the Court as well as the prosecutor and under the circumstances of an interview or interviews they (the evaluators) may not get the full ie. complete picture. I had one client who went to an evaluation and the evaluator decided on a year’s worth of treatment for dependency because the client stated he drank more than 5 drinks at one time. BTW 5 drinks for a man or 4 drinks for a woman at one time is classified as a binge drinker. BINGE is BAD in the world of evals. Imagine if you will a year’s worth of 2 to 3 times a week standing up and saying, “hello, my name is Bob and I’m an alcoholic,” and you may begin to see the grim picture if you are truly a person without a problem. These sessions would be costly in terms of time and money but more than that unjust in my opinion. In the preceding example no one took into consideration Bob’s height, weight, tolerance, what was eaten, or even the time in which he consumed the five drinks.

When I practiced as a Chiropractic Physician (before my legal career) I was trained in the use of a psychological manual called the DSM- III (this is now the updated DSM- IV). DSM stands for The Diagnostic and Statistical Manual of Mental Disorders. Think of the DSM as “Abnormal Psychology for Health Care Providers” and you have a better picture. This manual allows doctors, psychologists, social workers, addition specialists and a host of other mental health care servers to quickly look up a set of symptoms, patterns, and other behaviors and make a “potential” diagnosis or diagnoses.

As a doctor I needed to differentiate (and sometimes place a rule out diagnosis) between physical illness and psychological illness. Oftentimes patients would have a layer of psychological problems/issues aside from and in addition to their disc or nerve or muscle injury. Now the reason I bring up and explain all of this is because this manual is the “go to” guide for evaluators. As a DWI defense lawyer the manual has new significance for me and my clients.

The manual describes alcohol abuse as ANY “harmful” use of alcohol. Harmful use of alcohol can be further described as any use that causes physical and/or mental damage. We all know that alcohol by it’s very nature causes brain cells to die (alcohol blocks oxygen from the brain) so an abuse diagnosis is a very common one.

Legally, Alcohol abuse merely requires education. This can often be in the form of New York State’s DMV 7 week Drinking Driver Program (DDP). The Court can force compliance with treatment, rehabilitation, and education related to any plea and/or conviction. In some New York counties this must come before a final case resolution, but in the majority of others it comes as a condition of discharge with the Court (after the final disposition).

The question on everyone’s mind is so where is the line between alcohol/drug “abuse” and alcohol/drug “dependence”?

Well generally the following are some of the behaviors that those dependent on alcohol may display:

1. Drinking only one type of alcoholic beverage or preferring one brand.

2. Only going to events, get togethers, and parties that serve alcohol.

3. Being able to drink more and more over time by increasing their tolerance to alcohol.

So far these first three sound like my college days or the behavior patterns of many of us, but please read on,

4. Making a decision to quit drinking and then feeling compelled to drink.

5. Drinking to help a hangover (after a night of intense drinking).

6. A compulsion to drink (feeling you have to drink).

7. Getting shaky and feeling ill if you do not drink (alcohol withdrawl symptoms).

If you become DEPENDENT on alcohol then you should seek help. These last 4 critieria indicate people that have a problem with alcohol.

If we look at what the DSM-IV states we find the following:

If you have (display) 3 of the following 7 symptoms (over the course of a year) you are classified as alcohol dependent. By the way, Alcohol “dependent” is a nice way of saying you have “alcoholism.”

-You Neglect activities (giving up on your job, social, and joyful pursuits) because of alcohol,

-You drink Excessively (large quantities over long time periods) beginning drinking early to late,

-You Can not Control your drinking or cut back on drinking,

-You Keep drinking even though it is affecting you mentally, physically, and socially,

-You spend a large majority of time in activities that involve drinking alcohol,

-You get nausea, shakiness, anxiety, and sweating if you do not drink,

-You can really put it away (you have a very high tolerance).

My own personal opinion from helping thousands of people as both a Chiropractor, and as an attorney is those people with drug/alcohol problems usually know it. If they do not deal with it early and own up to it they will eventually be forced by the Court/Legal System to confront their issue with more pain and cost to them and their families in the long run.

To me there is nothing sadder than watching someone throw away their life, and their potential as human beings away due to misuse of drugs or alcohol.