“We used to think that our fate was in the stars. Now we know, in large measure, that our fate is in our genes.” ~James Watson (Nobel Laurate)
It is 6:30 AM in San Antonio; on a clear sunny day, the alarm goes off, and Mike wakes up still tired but with new hope. Mike D, at 35 years, is facing prison time today for his fourth DWI. He had served time before and promised himself, his wife, and three children that he will never go back to prison again for driving while drunk. That promise was broken again last Christmas Eve when Mike was arrested at 2:14 AM for his fourth DWI. Unlike the last time facing incarceration, he can claim sobriety for at least 8 months and will be accompanied by his treatment provider at the court hearing scheduled for 2:20PM. Mike, facing at least five years in prison, waits nervously with his family for the judge’s decision.
This scenario is familiar to about a million people in the USA arrested every year for DWI. One-third of that number are repeat offenders. About 1,700 persons are killed each year by drivers under the influence of drugs or alcohol. Fortunately, Mike has not yet killed anyone or caused any bodily harm. In the USA, drunk and impaired drivers injure or kill somebody every two minutes. Every 30 minutes, someone dies from a drunk driving incident. Being aware of these horrific statistics and knowing there is no excuse for driving while impaired, should the legal system give up on the offender by throwing him/her in prison? Or would the community at large and in the interest of justice benefit from considering the conversion of prison time to potential rehabilitation?
To help understand the incarceration vs. treatment evaluation, it is helpful to see blame from the judicial perspective. The American legal system presumes free will and imparts criminal responsibility but allows for the uncontrollable influence of determinism by providing tolerance of defenses or easing resulting punishment.
This idea of the “uncontrollable influence of determinism” is an area of change in the legal system that requires thought in the absence of binding earlier legal examples (precedent).
About two years ago, in response to this idea, efforts were made to develop an acceptable treatment program that uses the Genetic Addiction Risk Severity (GARS) test. The GARS test was developed by Dr. Kenneth Blum and described previously in The Sober World. Utilizing the GARS test provided a legal example of evidence to help the courts choose rehabilitation vs. incarceration for repeat DWI offenders (even in patients with prior prison sentences for DWI). Specifically, the use of genetic testing enabled the rational for alternative sentencing probation, treatment for SUD, and continued monitoring of treatment (rehabilitation) as an alternative to custodial prison sentences.
Understanding “Determinism vs. Free Will”
This is the first case study based substantially on the GARS test. The GARS test result points to genetically based ‘determinism’ rather than ‘free will’ as the determining factor in deciding a DWI offender’s sentence.
Today, genetic technology has evolved and is used every day in the American legal system. Thirty years ago, using DNA evidence to decide innocence or guilt was unheard-of. Following the Human Genome Project, new defenses planed by attorneys promise a defense based on a DNA linked to a medically accepted disorder like Substance Use Disorder.
The persons’ genetic makeup DNA is responsible (genetic culpability). In civil courts, prosecutors and defenders rely on DNA as a rock-solid, indisputable source of evidence. Legal defenses based on genetic culpability for psychiatric disorders like alcohol use disorders (AUD) replace the often-unsuccessful insanity defense. Modern “genetic theory,” says that genes and environment determine human behavior, with genetics being the “first stage of the causal sequence.” The first argument against rehabilitation is that, for example, rehabilitation of a convicted predator is not possible. However, therapeutic models show significant improvement, reasonable recovery rates from AUD, and better clinical outcomes for individuals with addiction risk polymorphisms and compulsions correlated with those DNA markers.
Behavior carried out with criminal intent is punishable. In the past, the classification of criminality used everything from race to physical features and body structure. Early advocates of “biological criminology” were overshadowed by proponents of environmental determinism. Environmental determinism viewed socially deviant behavior due to environmental forces’ molding effects rather than a physiological function. Accordingly, an old adage described a defendant molded by environmental factors as “being born to Crime.” The genesis of behavioral genetics in 1990 helped support the formula, Phenome = Genetics + Environment (P=G+E). Along these lines, the modern “genetic theory” says that genetic and environmental variation produce behavior. The genetic factors that give an initial direction to development are the “first stage of the causal sequence,” that determines human behavior.
Under Anglo-American criminal law, the basis of sentence easing (mitigation) excuses is a “causal theory.” That is, legally speaking, “when an agent is caused by a factor outside his control to act criminally, he is excused; only those acts not caused by some factor external to his will are unexcused.” Understanding responsibility, or the relative strength of free will against the external forces that cause the behavior, is crucial in determining a standard for liability. Further explanations of the differences between “Free Will” and ultimate determinism are the subject of much debate. According to Western philosophy, an individual’s development depends on the uniquely human ability to exercise free choice. However, modern science challenges this proposition by providing support for the definition of an individual according to predetermined genetic characteristics. The tension is between two conflicting perspectives of human behavior: free will and determinism.
Conversion of incarceration to rehabilitation and beyond
Richard Green, Mike’s treatment provider, finished presenting Mike’s GARS results to his defense attorney one week before sentencing. The results clearly indicated that he had several risk variations (COMT, MAOA, DRD1, DRD4) in important reward genes. These genetic variations revealed a high likelihood that Mike is at risk for substance abuse. This genetic outcome indicates “determinism” relative to “free will.”
Mike’s intense desperation turned to tears of joy with the sentencing–
Based on the evidence including GARS presented to the prosecuting attorney, which included 300 pages of discovery, documenting your treatment and evaluations, setting a precedent with this plea agreement, instead of sentencing you to 5 years in prison, Mr. D is hereby mandated to 5 years’ probation (with ten nights in jail as a term of his probation), and to continue treatment counseling for SUD and trauma issues until released by your therapist.
This order included typical probation conditions (including moderate fines and the use of an ignition interlock, an in-car breathalyzer device). A subsequent legal proceeding granted D an occupational driver’s license (he owns a commercial vehicle repair service). He continued for more than a year after adjudication to have family stressors and struggle at times with denial. Nevertheless, he remained sober and continues to stay sober at the time of this writing. He continues to attend AA, weekly process groups, and twice-monthly individual counseling sessions. He has completed two and a half years of probation. D volunteers with a national non-profit group that works to prevent ‘drunk driving’ and often addresses groups on behalf of the organization as a speaker. He has had no positive urine tests, interlock violations, nor probation violations. Simply put, the court relied on the science and treatment plan presented and gave the client supervision instead of prison. To date, Mike has been a model probationer.
Looking to the future
The legally or socially-minded reader will be curious to know what fruit this bears for individuals charged with AUD / SUD related offenses, especially in Texas. Texas is one of nine states that does not have a lookback period, so that DWI arrest allows prosecutors to consider lifetime DWI convictions, even if they are decades old. Many factors can escalate the time a client is facing – first and foremost is the number of previous DWIs. Causing significant injury or permanent disfigurement (Intoxication Assault), Intoxication Manslaughter, and DWI with a minor under age 15 are felonies. Blood Alcohol Concentration (BAC) over 0.15 is an escalator.
In Texas, as in many states, there are prisoners with arrests and circumstances similar to this defendant. Those prisoners will live a decade, decades, or the rest of their lives in prison. Beyond the defendant/patient described herein, 16 individuals have entered into treatment rather than prison. Another eight cases are awaiting adjudication. The 16 adjudicated cases were facing a cumulative total of 198.75 years (72593days) in prison or state jail (low-security prison) in Texas. Instead, cumulatively they received (130 days) in county jail. In other words, these 16 patients received less than a ten-thousandth of the time they were facing. This team is actively tracking these patients and developing additional research for future peer review and adoption by other municipalities, including perspective drug courts.
The take-home message
We are aware that people with alcohol and substance use disorder might use the idea of ‘determinism’ vs. ‘free–will’ as an excuse to use alcohol. This is both unacceptable and unlikely. People involved in a court proceeding for DWI have good reason to seek treatment for their genetically determined severe AUD. The GARS test result and the individualized long-term treatment influenced by the GARS test result was a mitigating factor in sentencing.
To our knowledge, this is a noteworthy legal precedent that uses genetic information to advocate for rehabilitation instead of incarceration in SUD cases, especially with multiple DWIs. Courts fundamentally want to help people – society as a whole, victims, and accused offenders. Tracking technology, like ignition interlock and the GARS test to identify issues, and plan for offenders’ rehabilitation, are valuable tools for drug courts and advance their ability to resolve cases effectively.
As espoused by the co-founder of ASAM – Dr. David Smith, “Love needs care.” This care and love must be extended to those genetically and environmentally (epigenetically) trapped by their genetically determined risk for addictive behaviors.
Kenneth Blum received his Ph.D. in Neuropharmacology from New York Medical College and is a graduate from Columbia University and New Jersey College of Medicine. He trained at the Institute of Behavioral Genetics, Colorado University, Boulder, Colorado. He has published over 600 abstracts, peer –reviewed articles and 16 books and is in the process “Death By Neuron”. He has been the recipient of many grants and awards including a Life-Time Achievement in Addiction Medicine (Holistic Institute on Addiction Studies) and Presidential Award for Scientific Excellence (National Council of Alcohol & Drug Abuse Councilors), Scientific Achievement Award (City of Life Miami) and Best Abstract (2012) Award ASRA (Pain) and ASAM Best Abstract Award. He is the recipient of the Medical Titan Award 2020. Currently he serves as Editor –In Chief of three journals including Current Psychopharmacology and is on the editorial board of 18 other scientific journals. As the lead author on the first genetic association of a dopaminergic gene with severe alcoholism, he is considered by some as the “Father of Psychiatric Genetics”. He is the holder of many U.S. and foreign patents involving nutrigenomics. He is the lead author of a new Springer Neuroscience Brief book on the 12 Steps -entitled “Molecular Neurobiology of Addiction Recovery. He is Emeritus Faculty of The Institute of Applied Genomics and Biotechnology, Napur, India. He is currently serving as Chief Scientific Officer (CSO) of Geneus Health LLC (Division of Ivitalize Inc.). He also serves as Chairman of The Kenneth Blum Behavioral & Neurogenetic Institute (Division of Ivitalize Inc.)
Richard (Rick) Paul Green III, is the Principal Evaluator for the Integrum Program – Legal Expert Witness Services in San Antonio, TX. He is the CEO of Precision Translational Medicine/Precision Recovery, a Substance Use Treatment provider specializing in long-term Felony DWI Treatment and Monitoring. He is the former Director of New Resources Medical Arts Addiction Medicine Clinic in San Antonio, Texas. He has been qualified as an expert witness regarding Addiction and Alcoholism in Texas Courts since 2015. He is a national speaker, author, and researcher in the field of addiction. He serves in both national and state capacities with the governing bodies of addiction professionals. rick.green.rpg@gmail.com
Mr. Floyd is the founding Partner of Floyd Skeren Manukian Langevin that defends industrial injuries and occupational illnesses in California. He is a Certified Specialist in workers’ compensation and is a regular speaker at industrial injury conferences. He has served as Judge Pro Tem and Arbitrator/Mediator for the City of Los Angeles and the Los Angeles City Police Department. He co-authored “California Workers’ Compensation Claims and Benefits”, an online treatise. Mr. Floyd has ten offices throughout California and represents local and national employers, insurance companies and third-party administrators.
Paul Mullen is the Legal Director for Precision Recovery / Precision Translational Medicine. He has over a decade of experience helping addicts and alcoholics, and has been sober since August 14, 2009. Paul holds a business degree from Texas Lutheran University, a Juris Doctor from the University of Maine School of Law, and a Masters of Laws from the University of Southampton in the United Kingdom paul.mullen@ptmrecovery.com
Raymond Brewer is a dual-boarded anesthesiologist and pain medicine practitioner. His background in human space physiology led to a successful career as a USAF Senior Flight Surgeon and clinical researcher. Dr. Brewer brings a passion for medical research having served as a Principle Investigator in over 10 clinical trials, multiple additional trials as Associate Investigator and well-published author of book chapters and articles in Pain and Addiction Medicine. Certified by both the American Board of Anesthesiology and American Board of Pain Medicine, Dr. Brewer also serves as Senior Partner, Star Anesthesia, San Antonio, TX and CEO, Trinity Labs and on the Board, Luminus Biosciences, which specializes in nanotechnology drug delivery solutions. Dr. Brewer earned his BSc with Honors from the United States Merchant Marine Academy and his M.D. degree from Uniformed Services University of the Health Sciences, F. Edward Hebert School of Medicine. He received specialty-medical/surgical residency at the Wright State Dept of Surgery and the combined Wilford-Hall/Brook AMC, San Antonio, TX.
www.Precision-recovery.com (Coming Soon)
