Introduction

As lawyers involved in the criminal justice system, we often have first-hand knowledge of the deleterious impact of substance use disorders, especially those involving controlled substances.  We also know from experience that many crimes are committed in the backdrop of the misuse of drugs and alcohol.  And with some crimes, such as operating while intoxicated, alleged drug and alcohol misuse is an element of the offense.  The misuse of drugs and alcohol can also have a significant impact on sentencing.

While not all persons accused or convicted of a crime involving misuse meet the diagnostic criteria for alcohol or drug disorder, an arrest or criminal conviction involving controlled substances is certainly a factor to be considered in a diagnosis.  This is because when the use of a particular substance causes the person using them to become entangled in the criminal justice system, they are at least beginning to manifest the kind of behavior consistent with a substance use disorder.

The best way to determine if a client has a substance use disorder is to have the client assessed by a competent psychologist or psychotherapist. At the conclusion of the evaluation, the therapist will prepare a substance use evaluation (SUE), formerly called a substance abuse evaluation (SAE). With the notable exception of evaluations prepared for driver license restoration appeals, there is not generally a standard SUE form.  There are many different formats, but a good SUE typically follows the structure of a psychological evaluation performed by a clinical psychologist. The SUE should include the reason for the referral; the offender’s family, criminal, substance use and mental health history; treatment history; a diagnosis; a detailed explanation for the diagnosis; recommendations; and if warranted, a description of the recommended treatment plan.

Consequently, during the evaluation of the patient, the therapist will collect a biographical history, including information relative to the patient/offender’s background, work and personal history, education, medical history, family relationships, past mental health diagnosis and treatment for the patient and patient’s family, if any, and past substance use.  In addition to the biographical/medical background, one or more pen and paper tests will be given. It is important that the evaluator utilize psychometric testing instruments that are reliable and valid in measuring substance use disorders.  At the completion of the initial interview, and after a review of the assessments, the therapist will form an opinion and offer a diagnosis and treatment plan.  The diagnosis will almost certainly be based on the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).

Should you decide not to refer the client for a “private” evaluation, then the law in Michigan requires that all persons be ordered to undergo substance use screening.  Specifically, the statute¹ reads as follows:

[t]he court shall order the person to undergo screening and assessment by a person or agency designated by the office of substance abuse services to determine whether the person is likely to benefit from rehabilitative services, including alcohol or drug education and alcohol or drug treatment programs.

However, some courts will substitute a private SUE for the NEEDS assessment.  This saves the client money and might also make him or her eligible for immediate sentencing.

Consequently, whether via a private SUE or as part of a NEEDS assessment, attorneys handling criminal cases, including intoxicated driving offenses, will at some point be confronted with a DSM diagnosis.  Accordingly, it is important for all practitioners to be familiar with the manner in which a substance use disorder is diagnosed.

The DSM-5 Manual Explained

The DSM-5 is a compendium setting forth a standardized classification system for mental health disorders, and many consider it to be the most authoritative guide available. As such, the DSM contains “descriptions, symptoms, and other criteria for diagnosing mental disorders. It provides a common language for clinicians to communicate about their patients and establishes consistent and reliable diagnoses that can be used in the research of mental disorders.”²

Translated into over twenty languages, referred to by clinicians from multiple schools, as well as by researchers, policy-makers, criminal courts, and third-party reimbursement entities, the Diagnostic and Statistical Manual of the American Psychiatric Association enjoys a nearly hegemonic status as the reference for the assessment and categorization of mental disorders of all types - not only in the United States, but increasingly in Europe and more recently Asia.³ The first edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-I⁴) was officially released in 1952.⁵  The DSM-II was published in 1968.

By the 1970s,“substantive advances in psychometric instruments for quantitative psychiatric assessment, such as rating scales and checklists for anxiety and depression, had become something of a standard in mental health research and practice.”⁶  This led to the publication of the DSM-III in 1980.  The DSM-III was considered a “turning point” in psychiatry because many of the modifications incorporated into the DSM-III constituted a veritable paradigm shift.⁷  The next two editions of the DSM set forth further refinements and attempts to encapsulate additional advances in the diagnosis and treatment of mental health disorders. While its significance and authority continues to increase with each new edition, most practitioners agree that the DSM-5 will eventually be supplanted by a DSM-6, which will in turn be supplanted by a DSM-7 and so on.

Important Changes in DSM-5 Regarding Substance Use Disorders

The DSM-5 was first published in 2013.  According to the DSM-5, “the essential feature of a substance use disorder is a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems.”  These clusters include more specific categories, such as impaired control, social impairment, risky use, and pharmacological criteria.

Previously, the DSM-IV contained only two possible diagnoses for an alcohol use disorder; a person either suffered from an alcohol abuse disorder or an alcohol dependence disorder. The criteria to establish that an offender’s use was consistent with an alcohol dependence disorder was, however, confusing. Before the DSM-5, diagnostic criteria considered Alcohol Abuse on the continuum leading to Alcohol Dependence. Although this can be possible, clinicians and researchers realized that the two diagnoses are not independent categories but rather exist within a continuum. Consequently, these two diagnoses are not currently used and substantial changes were made to the diagnostic criteria with the latest manual version.

The approach of the DSM-5 now looks at the issue of the misuse of alcohol and drug use as existing on a spectrum of severity.  Thus, it essentially collapses the two former diagnoses together. Now, clients are assessed by global alcohol and/or drug use severity, which can range anywhere from mild, which means having “only” the presence of 2-3 symptoms, 305.00 (F10.10), or moderate, with 4-5 symptoms, 303.90 (F10.20), or severe, having 6 or more symptoms, 303.90 (F10.20).

There are 10 total possible symptoms, and the DSM-5 dictates that a symptom is scored only “if there is a problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least two of the following, occurring within a 12-month period”:

(1) alcohol being taken in larger amounts or times than intended; (2) unsuccessful attempts to stop or cut down use; (3) cravings; (4) continued use despite bad consequences and outcomes (such as a prior drunk driving arrest); (5) giving up other important social or occupational activities to pursue or because of alcohol use; (6) use despite facing health consequences.

The remaining three symptoms involve issues of tolerance and withdrawal.

The symptoms listed above address alcohol only.  Practitioners should know that the way of categorizing drug use disorders has changed in similar ways as those described for alcohol and that the diagnostic criteria are also similar.

Substance Use Evaluations in the Defense of Intoxicated Driving Cases

As indicated, referring your client for a substance use evaluation (SUE) might be part of the comprehensive approach to an intoxicated defense strategy. This may be done early in the case as part of a mitigation defense, and might also be necessary after a conviction as part of a driver license restoration.  In either event, any diagnosis of a substance use disorder should be based on the DSM-5 criteria.

There are many psychotherapists specializing in substance use disorders who can prepare this SUE. As previously mentioned, in addition to the clinical interview, the most common written tests, or “measures” are the MAST (Michigan Alcohol Screening Test), the DAST (Drug Assessment Screening Test) and/or the SASSI (Substance Abuse Subtle Screening Inventory).  The purpose of these tools is to assist the evaluator in determining if the client meets the criteria for a diagnosis for alcohol or drug use disorders. Evaluators assess both alcohol and drug problems simultaneously during an evaluation.

In Michigan, all courts use the NEEDS assessment for this purpose.  This assessment contains 130 questions, 129 of which can be answered yes/no.  Of the 130 questions, 46 are directly related to alcohol and/or drug use.  The government, particularly in the courts, is the only place a NEEDS assessment would be administered for this purpose.  It is a simple standardized test that probation officers, sometimes with little or no mental health training, can administer and score.  The NEEDS assessment is not used by private therapists.

Another reason to refer a client for a SUE is as part of the case work up for a driver license restoration.  Practitioners should note that, as of the date of this writing, the current Michigan Substance Use Disorders Evaluation form is dated 01/02/14 and requests the evaluator to provide the outdated DSM-IV diagnosis.⁸ This can be tricky for the evaluator, as current best practices inform a licensed mental health or substance use practitioner to provide the most current diagnosis used in the field.

Further complicating this issue is the fact that most health care agencies nationally are turning to the use of the ICD-10 (International Statistical Classification of Diseases and Related Health Problems) diagnostic categories for mental health and substance use disorder. The ICD is a publication by the World Health Organization (WHO). Like the DSM, the ICD contains codes for various diseases and mental health disorders, including substance use disorders.⁹  Until the country unifies its use of these diagnoses, and until the State of Michigan updates the standard Substance Use Disorder Evaluation form, the discrepancy will remain a problem.

However, provided the evaluator uses and makes reference to the DSM and manual number (i.e., DSM-IV or DSM-5) following the diagnosis code, this may not be a problem, but it has been reported to attorneys during driver license appeals by hearing officers that some of the officers have their own personal preferences for the diagnosis, leading to anxiety and confusion in the hearing. Overall, the new DSM-5 coding system is now widely accepted, easy to use and understand, and important to know for the informed lawyer defending OWI cases and handling driver license restoration.

An additional benefit of referring your client for a substance use evaluation to a highly qualified private psychologist who specializes in substance use disorders is the uncovering, if relevant, of co-occurring disorders. Co-occurring disorders are other substance abuse or mental health issues that are comorbid with the potential alcohol use disorder. A well-trained clinician will recognize the existence of other disorders and offer recommendations for the appropriate types and levels of treatment. Such recommendations are invaluable for the client (and the attorney) in that the client may then receive properly matched care for a potentially complex set of substance and mental health related difficulties. In addition, receiving treatment prior to sentencing can assist the client with minimizing the impact of stress, chemical withdrawal, relapse and trauma that might emerge during the legal process.

Additionally, the existence of such co-occurring disorders may impact the way the client is presented to the court at sentencing. The fact that a client is now aware of the co-occurring disorder, and is treating it, may help demonstrate a significant change in circumstances, particularly when the client is a repeat offender who has never had such treatment. Knowledge and treatment of the co-occurring disorders can also help with issues of client management while the case is pending.

Conclusions

Although the DMS-5 has been in circulation since 2013, many mental health practitioners still use the DSM-IV diagnosis codes.  Other therapists use the ICD-10, while the courts use the NEEDS, often then diagnosing based on the DSM.  Consequently, it is important for practitioners to understand how the various disorders are characterized in the DSM as well as the criteria used in fashioning a diagnosis.  It is often helpful to collaborate with an experienced therapist and then to monitor the client as they follow through on the recommended treatment plan.  Doing so will help ensure the clients success both while on bond and, if necessary, while on probation.

by Patrick T. Barone, Esq. & Elizabeth A. Corby, PhD, CP, PAT

Patrick T. Barone is the founding partner at the Barone Defense Firm, with offices in Birmingham and Grand Rapids.  Mr. Barone exclusively handles the defense of intoxicated driving cases, including those involving serious injury or death.  He is the author of the two-volume treatise Defending Drinking Drivers and is an adjunct professor of law at WSU/Cooley Law School.  Since 2009, the Firm has been included in US News & World Report’s America’s Best Law Firms. Mr. Barone has an “AV” rating from Martindale-Hubbell, is rated “Seriously Outstanding” by Super Lawyers, and “Outstanding/10.0” by AVVO. Mr. Barone is also a 2017 candidate for ASGPP Board Certification in Psychodrama, Sociometry and Group Psycho-therapy. Find him on the web: www.BaroneDefense Firm.com.

Dr. Elizabeth A. Corby is a Clinical Psychologist pro-viding evaluation and psycho-therapy services to individuals, couples and families. After obtaining her Ph.D. in Clinical Psychology, she was a postdoctoral clinical fellow within the School of Medicine at Wayne State University, and subsequently on faculty at WSU within the Department of Psychiatry and Behavioral Neurosciences within the School of Medicine. Dr. Corby has  also completed post-doctoral training in and received certification from the Beck Institute for Cognitive Therapy and is a board-certified practitioner in Psychodrama, Sociometry and Group Psychotherapy.  She is also the co-founder of the Michigan Psychodrama Center where she leads psychodrama workshops for therapists, lawyers and other professionals.  Dr. Corby’s individual and group psychotherapy practice is located in Royal Oak.  In addition to her clinical work, Dr. Corby provides Substance Use Evaluations for use in criminal matters and driver license restoration cases.  She may be reached on the web at www.drcorby.com.

Endnotes

1.  MCL 257.625b(5).

2.  http://www.dsm5.org/about/Pages/faq.aspx (last checked 10/27/16).

3.  Kawa, A brief historicity of the Diagnostic and Statistical Manual of Mental Disorders: Issues and implications for the future of psychiatric canon and practice, Philosophy, Ethics, and Humanities in Medicine, 7:2 (January, 2012).

4.  The American Psychiatric Association changed the traditional Roman numeral to an Arabic numeral with the DSM-5. See http://www.dsm5.org/about/ Pages/faq.aspx (last checked 10/27/16)

5.  Kawa, 7:2.

6.  Id.

7.  Id.

8.  http://www.michigan.gov/documents/sos/SOS258_ Substance_Use_Evaluation_Form_404465_7.pdf (last checked 10/27/16).

9.  http://www.who.int/classifications/icd/en/

Subscriber Comments

• You must be a subscriber to view comments