Ithaca Cortland Lawyer: The New DSM-5 meets the Old New York DWI

The DSMs go on and on, courtesy of goodtherapy.org

The New DSM-5 meets the “Old” New York DWI

The manual, known as the Diagnostic and Statistical Manual of Mental Disorders, or D.S.M., aka the “Bible” of diagnosing mental disorders/diseases is about to have a major revision. This book will be the DSM-5, the last one being the DSM-4 which began life in 1994. The manual is slated for release in June 2013. Throughout this blog post I will alternate between Roman numerals and numbers for the DSM editions, my demonstration of contempt for this continued antiquation by condescending psychiatrists.

My familiarity with the book began back in my early days as a Chiropractic College student. The early 1980s had me taking a number of Abnormal Psychology classes. This background in Ab-normal psych was necessary for my National Board Certification as well as my introduction to being able to differentially diagnose the physical problems of my patients from their overlaying and underlying mental/emotional ones.

Practicing law since 1998 I have seen my fair share of changes both in law and medicine. Each change in a statute, a regulation, a definition, a term, an interpretation, and a law brings with it a number of issues (problems) both direct and collateral. People’s lives stand in the cross hairs of this “progress” and confusion.

Numbers for Legal Measurement of Criminal Behavior

As a New York DWI lawyer the BAC (Blood Alcohol Concentration) for DWI has gone lower and lower over the past four decades in all fifty states. Now the level stands at a .08 BAC nationally to declare that someone is “legally” intoxicated, or under the influence of alcohol.

Alcohol is the “only” drug (legal, socially acceptable, readily available) so far that has a number (a quantity) associated with it’s functional impact upon a person equals a criminal activity. There is no measure (amount in blood) for the effect of marijuana, or ambiene, or oxycodone. Nor are there any statutes that state a specific quantity of this or that amount of a drug/substance in the blood stream while driving would equate to a crime.

So what does all this have to do with the New DSM-V and New York DWIs?

I’m glad you asked, because the New DSM is as subjective as they come to now pathologizing normal activity. That scares me as an attorney because we are now as a society going to punish you for your criminal activity (DWI), and then label (categorize/diagnose) you as person in need of treatment. College binge drinkers beware, because you can now be diagnosed as mild alcohol abuser in need of treatment.

see this recent magazine article on college kids and the dangers of this new wider criteria for making a substance addiction (alcoholic) diagnosis:

http://healthland.time.com/2012/05/14/dsm-5-could-mean-40-of-college-students-are-alcoholics/

 

Who is Going to Use (and rely) Upon the New DSM-V Guidelines with NY DWIs?

Sweeping changes to the manual will affect broad criteria for addiction. The community of healthcare providers who use the manual (including OASAS certified drug/alcohol evaluators) will rely upon this wider range of behavior to give a diagnosis and a treatment plan.

Mandated NY DWI Drug /Alcohol Assessments will include these new diagnoses and their commensurate recommendations which will then be relied upon by the Courts/Judges, the District Attorneys, and the County Probation Departments. Allen J. Frances, a professor of psychiatry and behavioral sciences at Duke University who has contributed to the D.S.M., has stated that the “new” definitions amount to “the medicalization of everyday behavior” and will create “false epidemics.” In short, addiction diagnoses will multiply like rabbits, which could result in millions of people being diagnosed (IMHO inappropriately) as addicts.

The Perfect Psychiatric Storm (increased business for providers)

The problem is twofold:
(1) there is an expanded list of recognized symptoms for drug and alcohol addiction, and
(2) they have reduced the number of symptoms required for an addiction diagnosis.

ADD 1 plus 2 = millions of people now diagnosed with alcohol addiction

This information is based on changes posted on the Web site of the American Psychiatric Association, which produces the manual.

Psychiatry has No Gold Standard

In medicine, certain tests are utilized to form and/or confirm a diagnosis. These tests or procedures are known as the “Gold” standard. An MRI will be used to diagnosis a disc herniation of the spine. So the MRI is the Gold standard for the diagnosis and then called for treatment of that condition. Certain blood tests are the Gold standard to diagnose certain bacterial and viral disorders. The Gold standard is not perfect medicine, merely the best scientific evidence to be obtained under reasonable circumstances. Unfortunately, the field of psychology is very subjective. There is a wide range of opinions among the community of practitioners as to how to make a mental diagnosis.

Under the new criteria (DSM-V), those DWI offenders who often drink more than intended and/or crave alcohol may be considered mild addicts. Under the old criteria (DSM- IV), more serious symptom behavior, such as repeatedly missing time from work or school, ANDbeing arrested for DWI/DUI, were required before a person could receive a diagnosis as an alcohol abuser.

Are YOU merely an "Unhealthy" User OR a "Severe" Abuser?

Great to have new defintions but what exactly is a craving? Many days I have cravings (desires) for specific foods, like pizza, Chinese, or thai. But do I also have a craving or a feeling for other things? And are cravings in and of themselves bad?

“Craving” is a new symptom of addiction. Is craving a scientifically measurable thing? Or is the definition of craving really a feeling and subjective?

Out with the Simple (Clear Cut) Past (DSM-IV) and in with the New Confusing (DSM-V)

1. DSM-IV created separate diagnoses for "abuse" and "dependence" in people having problems with drugs and alcohol. The new DSM-5 will instead will use the broader term "substance use disorders" as the diagnosis for people with such problems.

2. No longer will evaluators use increasing physical tolerance (for drugs and alcohol) and withdrawal symptoms as criteria for a disorder diagnosis. These are considered a normal physiologic response to the use of these drugs. Allowing doctors to prescribe and monitor their patients with prescription drugs that lead to these "normal" body responses.

In the words of one of the revisers: “The term dependence is misleading, because people confuse it with addiction, when in fact the tolerance and withdrawal patients experience are very normal responses to prescribed medications that affect the central nervous system,” said Charles O’Brien, M.D., Ph.D., chair of the APA’s DSM Substance-Related Disorders Work Group. “On the other hand, addiction is compulsive drug- seeking behavior which is quite different. We hope that this new classification will help end this wide-spread misunderstanding.”

3. The word "addiction"is GONE. It is history, a term of the past, everyone will now have or not have a Use Disorder.

Ah, the myriad of Use Disorders: There are Alcohol-Use Disorder, Marijuana-Use Disorder, Opioid-Use Disorder, and the list goes on. USE DISORDERS are now de riguer because the new revisiers thought the word addiction or to be an addict was politically incorrect (to be fair they used the terms pejorative and stigmatizing).   

4. The DSM-V also has new interesting diagnostic criteria for something they call “cannabis withdrawal.” I guess this is where someone stops smoking pot after being a pothead (do they still call them that?).

The APA says that this is caused by “cessation of cannabis use that has been heavy and prolonged,” which results in “clinically significant distress or impairment in social, occupational, or other important areas of functioning,” and is characterized by at least three of these symptoms: irritability, anger or aggression; nervousness or anxiety; sleep difficulties (insomnia); decreased appetite or weight loss; restlessness; depressed mood; and or physical symptoms such as stomach pain, shakiness or tremors, sweating, fever, chills, and headache.

Goodbye Addiction and Dependence Welcome Substance Use-Disorder

Welcome to this Brave New World where millions of college students and first time DWI offenders may now face labels, embarrassment, and inappropriate treatment programs.

Law Offices of Lawrence Newman

Dr. Lawrence A. Newman
Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

Ithaca College, Criminal Charges, and Administrative Hearings

Sometimes as part of my representation of IC (Ithaca College) students they will request my attending their administrative hearings. Violations on campus and usually many of the dorms/apartments are part and parcel of campus property will often result in a separate college board hearing/review to determine what consequences/punishments/reprimands/suspensions/expulsion the student may face for their criminal charges.

Under the IC policy ANY attorney involvement in these is forbidden. This is a "one on one" meeting.

See highlighted code under (5.) below:

7.1.2.4 Administrative Hearing Process [IV]

As amended by the Ithaca College Board of Trustees April 14, 2000, October 13, 2006, and May 17, 2009.

When a nonacademic incident occurs involving an Ithaca College student's alleged violation of any rule or regulation outlined in the "Statement of Responsibilities," policies provided in section 7.1.2.3 or in the residential life rules and regulations, the matter will be handled according to the following procedures unless the incident occurs at the end of an academic year and involves a graduating senior. For an incident involving a graduating senior, the College shall be permitted to modify the steps in the hearing procedure to allow for resolution of the matter prior to commencement:

1.	The incident is documented.
2.	The documentation is then forwarded to the director of judicial affairs or other appropriate administrative hearing officer, who will determine if the student will be charged for the alleged violation(s) of the student conduct code.
3.	When a student is charged, the student will be notified in writing by the director of judicial affairs or other appropriate administrative hearing officer. This written notice will include the section(s) of the residential life rules and regulations and/or the student conduct code allegedly violated; a brief description of the incident; the date, time, and location of occurrence, if available; and an appointed time to meet with the designated hearing officer. The letter will include instructions for rescheduling the meeting should the student have a conflict with the scheduled time. The letter will include a statement indicating that if the student fails to appear for the meeting, that student waives the student's right to this administrative hearing process and a decision regarding responsibility and sanction will be assessed based on the available evidence. This judicial charge notice must be received by the student at least 72 hoursbefore an administrative hearing is convened to consider the matter.
4.	Students who fail to appear at the appointed time or fail to reschedule prior to the time of the original appointment waive their right to a hearing and may be assessed an appropriate sanction by the judicial hearing officer if responsibility is determined based on the evidence available.
5.	The administrative hearing is a one on one meeting between the student and the judicial hearing officer. The presence of an attorney and/or written materials submitted by an attorney in representation of his/her student client is prohibited. In the administrative hearing with the judicial hearing officer, the administrative procedures and charges will be explained, documentation and evidence will be reviewed, and the student will be provided the opportunity to have all pertinent questions answered. At the hearing the student and the judicial hearing officer will discuss the relevant information from the incident as well as any other information that the student or the judicial hearing officer deems appropriate.
6.	This hearing will result in one of the following possible outcomes:
	The hearing officer may dismiss the charge(s). The student may accept responsibility for the violation or may be found responsible by the hearing officer based on a preponderance of the evidence. A sanction (see section 7.1.2.8) will be verbally indicated by the hearing officer within 24 hours of the hearing, with written notification to follow within ten (10) College business days. In the event that a judicial hearing officer determines that additional information or further investigation is required in order to reach a decision, the outcome of the hearing will be delayed pending this investigation. The judicial hearing officer will follow up with the student to arrange any additional needed meeting(s) and/or to apprise the student of the investigations in progress. The process will conclude with a final decision regarding the hearing.
7.	The student who has been charged under the student conduct code may at the conclusion of the administrative hearing process choose to accept the decision/sanction or choose to have the case heard before the conduct review board. (See section 7.1.2.5.) If a case involves a graduating senior, the decision of the judicial hearing officer is final unless the decision/sanction involves withholding of a transcript or diploma, suspension, or expulsion. A decision/sanction involving withholding of a transcript or diploma, suspension, or expulsion may be appealed to the vice president for student affairs and campus life or designee.
8.	In cases of Sexual Misconduct or Domestic Violence the following additional procedures will be incorporated in the administrative hearing process: a. The primary witness and accused student will have the right to select an adviser from a specially trained pool of students, faculty and staff trained in the areas of domestic violence and sexual misconduct. The special adviser will help guide the primary witness/accused student through the judicial process., b. The administrative hearing will be conducted by both a male and female hearing officer. c. The primary witness will be given the opportunity to meet with the hearing officers to provide information about the case prior to the hearing. If a primary witness elects NOT to attend this meeting, the alternative options are handwritten, audio taped, or video- taped statements submitted 24 hours in advance of the hearing.

The student may also choose to have a conduct review board hear the student's case if the student has been charged under the residential life rules and regulations and the hearing officer has imposed a sanction of residence hall reassignment, residence hall restriction, and/or termination of the student's housing contract. No other sanctions imposed by a hearing officer regarding the residential life rules and regulations carry with them the option of a conduct review board hearing.

A written request for a conduct review board hearing must be received by the director of judicial affairs within 72 hours of the written notification of the sanction(s) from the administrative hearing.

In the event that a student is eligible to have the student's case heard before a conduct review board and chooses to do so, the decision rendered in the administrative hearing becomes null and void, and the student continues without sanction until the conduct review board hearing process is completed.

Takeaway: So I think it best to talk to an attorney before your proceeding, to discuss the impact of the criminal proceeding, and how it's outcome may be followed by resolving academic issues later on. Sometimes it also helps to let the College know you are accepting responsibility for your conduct, and being proactive about getting help. These things can go a long way to assist your long term college goals.

The Back to School DWI

It's been a long and hot Ithaca summer. Compared to last year's record coolness, and lack of humidity this summer was brutal. I think we used the old window A/C units only few times last year. In fact, I was bragging to some friends how summer here is so lovely, blah, blah, blah, and then 2010 balanced it all out.

Cornell University and Ithaca College students are back, and the town is buzzing once again. My law practice focuses on DWI/DUI defense so naturally I have represented many students over the years.

One all too common DWI scenario is when a boyfriend and girlfriend have a nice dinner or a small party/get together. They all plan to spend the night, enjoy some drinks, and no one plans on driving. Then later in the evening or in the wee hours of the morning a fight or argument ensues. Maybe a drink spills on a laptop, or the liquor/beer/wine brings out some honest feelings or perspectives. Maybe the conversation becomes heated. Tempers flare and all reason gives way to heated emotion.

Now one party demands that the other leave immediately. Your best friend/lover/partner may even call the police after you leave, and tell them you are driving drunk or that you are driving high. With the flip of a switch you are in DWI hell. This situation is so common in my world that I call it the back to school DWI.

I always tell students that the time to think about a back up plan is not in the heat of the moment. You cannot think clearly with a combination of alcohol, and a polarized emotional state. Do not take any chances with your future. Always have cash and/or a credit card for a cab. Always have a car service number programmed in your cell contacts. Never assume that your friends are always looking out for your best interests. The bottom line is you have to protect yourself.

Understanding New York DWI Alcohol Evaluations Part 2

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 Dummies" 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.

Understanding New York DWI Mandatory Alcohol Evaluations: Part I

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 my next blog I'll discuss the differences between how counselors make an abuse diagnosis versus a dependency diagnosis in more detail.

DWI "Just the facts, ma'am"

I listen to stories about drinking and driving almost every day. I need to know all the details. In my day we had a TV show called Dragnet. The show had a cop named, Joe Friday who loved to say, "All we want are the facts ma'am." I too want the facts but more importantly I want my client's version of the night. I want to understand his perceptions and viewpoint.

This allows me to piece together the timelines, the potential witnesses, behavior patterns, and the amount of alcohol consumed. Ultimately I want to have a more clear picture of the prosecution's case against my client. I also have a software program that allows me to input my client's age, sex, height, weight, and drinking information to arrive at a pretty accurate BAC (Blood Alcohol Concentration) at the time of driving. Of course it is only a BAC range, and highly dependent upon my client giving me reliable information.

One of the first things that is difficult to estimate is the potency of the drinks. What type of beer or wine was drank? What was it's alcohol concentration? How big were the cocktails or the glasses they came in? Sometimes "one" drink has really 3 or 4 shots of 80 proof liquor. Beer can be 3-5 % and wine can go up to 14 %. Bacardi 151 is 75 % alcohol!

I recently had a client who swore he only had 3. Yeah, as in 3 Long Island Iced Teas! Do you know how much alcohol is in one LI Iced tea? In a good one, there is probably at least 4 shots.

So my client had 12 drinks before he began drinking Lite beer later in the evening. I would imagine smoking a few hits off his buddy's joint didn't help matters.

Remember that proof is twice the percent of alcohol.

5 ounces of wine 24 proof 24 ÷ 2 = 12 (% alcohol) 12 ÷ 100 = 0.12 0.12 x 5 oz = 0.6 ounces ethanol

12 ounces of beer 10 proof 10 ÷ 2 = 5 (% alcohol) 5 ÷ 100 = 0.05 0.05 x 12 oz = 0.6 ounces ethanol

1 1/2 shot 80 proof 80 ÷ 2 = 40 (% alcohol) 40 ÷ 100 = 0.4 0.4 x 1.5 oz = 0.6 ounces ethanol

One drink = .6 ounces of ethanol and usually one drink will cause someone (the average person) to go up .02 to .03 BAC per drink. If you had 4 drinks in a one hour period then your BAC would be .08 to .12. Alcohol dissipates (is expelled, eliminated) at around .015 to .02 per hour. In theory you can drink one drink per hour and clear the alcohol from your body at that rate (in other words remain alcohol free), after the alcohol clears.

So you are at a bar and have two drinks over two hours, you leave the bar, your BAC should be less than .04?

But we do not know the size of the drinks, or your metabolism, how much you weigh, or what you ate? All these factors affect your elimination rate.

Breath tests are not always reliable, accurate, or valid. Often they are not administered properly. People come in all different shapes and sizes. Getting a real BAC is a beginning, and getting the facts of the case from my client takes us one step closer to defeating a DWI.