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May 31, 2016 Articles

Substance Abuse: A Perspective for Use in Plea Bargaining

Attorneys who are educated about substance abuse can offer viable alternatives to conviction for defendants accused of alcohol-related crimes.

By Ralph Guderian

The defendant is found by the police at 1:00 a.m., sitting on the back stairs of his neighbor’s house holding a small vase. He had entered, through an open window, the wrong house—frightening the neighbor, who screamed and then called 911. The defendant was charged with residential burglary, a felony. He was intoxicated and, in his words, “out of it.”

The neighbor stated that nothing was taken and had learned and understood that the defendant, who had a large family, had a drinking problem. This information was conveyed to the assistant state’s attorney, stressing the fact that the defendant was “out of it.” The state later reduced the charge to a misdemeanor.

The prosecution, defense, and judges are confronted daily with defendants who have been charged with offenses resulting from or involving alcohol, other drugs, or other similar substances. Drug use, abuse, or addiction/dependence is involved.

Generally, depending on the jurisdiction, if the defendant’s intoxicated or drugged condition was voluntarily produced, it cannot be raised as an affirmative defense during trial to avoid criminal responsibility for his or her conduct. However, during plea bargaining, sentencing, and the like, the defendant’s conduct can be considered as being the result of such use, abuse, or dependence. And reports of experts emerge, as well as treatment considerations.

There is a multitude of biological, psychological, and social factors involved in substance abuse. A leading work in this field, which is relied on in this article, is Loosening the Grip by Jean Kinney, M.S.W. (McGraw-Hill, 9th ed. 2009.)

Understanding substance abuse even a little, or at least thinking more about it, and not just leaving it to the experts, can help us function more effectively. And understanding the cause of a defendant’s conduct can lead to helping him or her to improve, rather than just exist, as the result of admitted or sentenced guilt.

Why Use?
There are many theories, all of which contain some truths. The accepted stance now seems to be a combination of factors approach. As an example, using this approach in search of happiness could be the theory—based in part on Andrew Weil’s innate psychological drive theory, the learning theory of behavior, and common sense. In short, everyone ultimately, consciously or unconsciously, seeks happiness—as in the song “Bluebird of Happiness.”

If on the whole a person feels happy, he or she has achieved a desirable balanced status quo. However, things change, including a person’s needs, such as the need to relieve anxiety, the need for escape—as in the song “Somewhere over the Rainbow”—the need for sex, etc. And if one of these needs, which is significant, is unfulfilled, this could disturb the status quo and the person would no longer generally feel happy. The person would then have to seek out something in his or her social climate to satisfy this drive to achieve happiness. And this could include alcohol or other drugs—substances that can be ingested or inhaled to produce a pleasurable effect, a state of sensual bliss—which can restore happiness.

What Are the Consequences?
When a person is in an intoxicated or drugged condition, he or she can be feeling good to euphoric—“wine, women, and song,” without which a man would “remain a fool his whole life long.” “Why, in truth, should one work, toil, write, create, or what have you, if in a sudden moment one can attain paradise?” “[M]an, this is some golden leaf I brought up from New Orleans. It’ll make your feel good. Take a puff.”

Or feeling bad to in pain. And focusing on the drug alcohol. If alcohol addiction/dependence has set in, biologically, the idea of drinking to feel euphoric has long since gone. The disease has taken hold. Alcohol has become essential just to achieve a normal feeling.

And alcohol addiction/dependence is a chronic disease for which at present there is no cure; however, it is treatable. Treatment is nothing more (or less) than the interventions designed to short-circuit the disease process and provide an introduction to an alcohol-free existence.

The Biological Effects of Intoxication
There is a multitude of biological, psychological, and social factors involved in alcohol use, abuse, or dependence. Understanding the biological effects of intoxication can help us in plea bargaining, sentencing, and the like.

A state of sensual bliss produced. Alcohol, biologically, is experienced as changing mood for the better. With mild intoxication comes relaxation, a more carefree feeling. It is generally experienced as pleasant, a high. Preexisting tensions are relieved. Its effects are immediate. However, the pleasant effects of alcohol are short lived; the alcohol consumed is changed chemically and metabolized, removing it from the body.

Alcohol is absorbed by the bloodstream and transported to all parts of the body. A small amount is taken up into the bloodstream through the tiny blood vessels in the mouth. Also, up to 20 percent can be absorbed directly from the stomach into the bloodstream. And the remainder passes into the small intestine to be absorbed into the bloodstream.

The alcohol circulating through the blood is absorbed by the water content of all bodily tissues and cells. It is distributed uniformly throughout this water content. It takes very little time for the tissues to absorb the alcohol circulating in the blood. Within two minutes, brain tissues will accurately reflect the blood alcohol concentration.

In the brain, alcohol hastens the breakdown and removal of the neurotransmitter norepinephrine. Neurotransmitters act as chemical messengers in the brain. They allow the cells in the brain to send messages from one cell to another. Thus, they are the basis of the brain’s communication system. Neurotransmitters allow messages to cross the spaces between cells, called synapses, and activate the receptors on the “receiving” nerve cells. Norepinephrine is known to be involved with activation and stimulation of the nervous system and the fight-or-flight response to threats. The removal of this stimulating neurotransmitter may help explain the calming or relaxing effects of alcohol.

Also, the presence of alcohol in the brain increases the level of endogenous (meaning naturally and normally occurring) opiate-like substances, known as endorphins. This in turn may lead to increased dopamine activity. Dopamine, a neurotransmitter, is one of the neurochemicals in the brain involved with the sensation of pleasure. When dopamine is released into the synapse, it results in increased feelings of well-being and stress reduction.

The removal of alcohol begins as soon as the alcohol is absorbed by the bloodstream. Small amounts leave unmetabolized through sweat, urine, and breath. This accounts for 5 percent of the alcohol consumed. The proportion of alcohol in exhaled air has a constant and predictable relationship to the blood alcohol concentration. (This is the basis for the breathalyzer.)

The rest of the alcohol consumed has to be changed chemically and metabolized to be removed from the body. Alcohol, even though it is a food, is metabolized at a constant rate irrespective of the amount present in the body or the body’s metabolic needs. The presence of larger amounts of alcohol at a particular moment does not prompt the liver to work faster.

The average rate of the metabolism of alcohol is around 0.5 ounce of pure alcohol per hour—roughly equivalent to one mixed drink of 86-proof whiskey or a 4-ounce glass of wine or one 12-ounce can of beer. (If the average healthy male drank five drinks in one hour, it would take approximately seven hours for it to disappear from his body.) The unmetabolized alcohol remains circulating in the bloodstream, “waiting in line.”

Alcohol addiction/dependence has set in. For a person to be diagnosed with alcohol addiction/dependence, there are seven generally accepted criteria set forth by the American Psychiatric Association in its Diagnostic and Statistical Manual of Mental Disorders (4th ed., TR (text revision) 2000). Three or more of these occurring in the same 12-month period would indicate alcohol addiction/dependence. One of these criteria is drinking in larger amounts or over a longer period than was intended. Another is more time spent in activities related to drinking or in recovering from drinking episodes.

A third is that important social, occupational, or recreational activities have to be given up. A fourth is the buildup of tolerance; that is, the body requiring a larger dose to induce the effects previously produced by smaller doses. Withdrawal symptoms, unsuccessful efforts to cut down, and continued drinking despite increasing physical problems or psychological problems, or both, are the remaining three criteria.

In later stages of alcohol addiction/dependence, the resulting medical complications may be progressive, irreversible, and fatal. Virtually every organ system is affected. These medical problems result in a markedly negative impact in the overall quality of the person’s life.

For an attorney to better assist his or her client, that attorney should have an understanding and sensitivity for alcohol dependence and treatment. An attorney will thus be able to offer alternatives with conviction that will assist the client and the court in fashioning a remedy. Virtually all alcohol-troubled defendants who are willing to participate actively in rehabilitation efforts can be helped. And, depending on the circumstances, they can eventually lead happy and productive lives—as in the song “Don’t Worry, Be Happy.”

Keywords: criminal litigation, substance abuse, alcohol, addiction, plea bargaining

Ralph Guderian is an attorney with Ribbeck Law Chartered in Chicago, Illinois. A shorter version of this article appeared in the Illinois State Bar Association's Criminal Justice newsletter.

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