Excessive Alcohol versus Alcoholism in Sentencing

A recent New York Times article (Most Heavy Drinkers Are Not Alcoholics by Tara Parker-Pope, 11/20/14) highlighted a study that shows the clear majority of excessive drinkers are not, in fact, alcoholics, suggesting that many crimes related to intoxication are committed by people who would be amenable to treatment. The distinction between alcoholism and excessive drinking is important for advocacy and sentencing in defense of alcohol-related crimes, such as DUI and many cases of domestic violence.

As a criminal defense lawyer, I routinely work with people who have significant alcohol problems. Some are alcoholics—people with immense cravings for alcohol, people who in moments of honesty tell me they do not trust themselves to stay sober, even when the consequences of a drink are severe. Advocacy for them requires a different approach. Although they need serious rehabilitative help, I do not assume that the therapy offered by probation will suffice. Where possible, family should get involved, and more systematic therapy (in patient, perhaps) to address the disease that alcoholism is.

Importantly, people with alcoholism should not lightly accept probationary sentences. Probation may sell itself as a rehabilitative alternative to jail, but the reality is that a person is on a short leash on probation, between meetings, therapy, and monitored sobriety. The small missteps that are a part of life for someone with alcoholism may not be tolerated or fully understood by a probation officer, and that probation sentence may quickly turn into a lengthy jail sentence. For people with alcoholism, as hard as this sounds, it will sometimes be wiser to accept a moderate jail sentence without any probation, and to leave rehabilitation to personal efforts following the sentence. Neither is a good option, of course, but those are the cards you’re holding if you have alcoholism and pending criminal charges without a decent trial defense. If this is you, develop a support network to help you confront your alcoholism, and be thoroughly honest with your attorney about your challenges. There are many different ways to structure a plea bargain that are safer for someone with alcoholism, and a good attorney will pursue such options if he knows your situation.

The analysis for an excessive drinker is different. A lot of my clients truly can control their drinking, they just didn’t on the occasion that gave rise to the criminal charges. For some, it’s a matter of raising awareness about behavioral changes they experience when drinking: typically increased temper or emotionality (common in domestic violence cases), or poorer judgment with respect to personal safety and the safety of others (typically DUI clients). Excessive drinkers may have an easy time avoiding the first sip of alcohol, but once they start they keep going and their decision-making suffers. A lot of these people can credibly say they wouldn’t miss alcohol if they cut it out of their lives. But even short of abstention, certain intermediate strategies may work for such people: leaving the car at home if headed to a bar, not having that first sip of alcohol if there is tension with a boyfriend or girlfriend that could turn into a fight. Acknowledging that a loss of control happens once he or she starts drinking can go a long way for such a person. For clients who are excessive drinkers, probation is usually a strongly preferable option to jail. A deferred judgment or other high-risk/high-reward resolutions of a case may be a good option for an excessive drinker but not an alcoholic. Excessive drinkers with willpower can abstain much more easily than a person with alcoholism, and can therefore benefit from and survive on probation.

Criminal defendants should discuss the following with their attorney: the role of alcohol in the incident in question, history with alcohol, alcohol consumption habits, prior attempts at treatment, the available support network, triggers, and more. This information might affect trial strategy, but it will certainly affect plea negotiation and sentencing strategies for those who are considering pleas, and is an essential part of your defense.