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TBI, PTSD, War Veterans and DUI

By Andrew Mishlove on June 11, 2014


american flag - Veteran DUIThe recent revelations about the scandal at the Department of Veteran’s Affairs have highlighted a crisis that is well-known to those of us who work in the criminal justice system: thirteen years of war has caused a great deal of damage to millions of our war veterans.

We often think of injured war veterans as those with amputations, bullet wounds, etc. To be sure, there are many of those. More prevalent and more insidious are those unseen injuries of traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD). These injuries are very real but very hard to discern. TBI, especially, may occur without any actual impact to the head. An explosion in proximity to the victim is sufficient. Combat veterans are coming home who have been in close proximity to many roadside explosions. The science of TBI is still developing. President Obama recently announced a task force to investigate the incidence of TBI both in war veterans and in contact sports. It has become well-known, however, that TBI has long-term consequences to the victim. Years after the trauma, behavioral changes can develop, including loss of impulse control, aggression, drug abuse, etc. This is obviously a contributing factor in the suicide crisis that has enveloped the veterans’ community.

My dad and my uncles served in World War II. Uncle Lee was in the Coast Guard on a ship in the North Atlantic. In the entire war, he saw one instance of battle, where his ship rescued survivors at sea. Uncle Jack was in Burma. He was a supply sergeant at an airbase (attached to the British). Although he had to go to the bomb shelter occasionally, he never fired a gun. My dad was stationed in Pearl Harbor. He never saw a battle.

By contrast, the war veterans that I am seeing in my law practice have suffered extraordinarily amounts of battle. I have a client who is a marine sergeant. He did three tours of duty, in both Iraq and Afghanistan. He has been in hundreds of firefights. He has been in dozens of situations where he was in close proximity to bomb explosions. He has suffered from poison gas, shrapnel and bullets. He has seen a lot of death. Despite the physical injuries, the worst injuries, by far, are the TBI and the PTSD. This extraordinarily intelligent young man has trouble functioning on a daily basis. He joined the marines right out of high school, at age eighteen. When he went to war, he had never had a single alcoholic beverage in his entire life. Now he struggles with alcoholism. Worse, he struggles with the inability to control his behavior, independent of the drinking.

I am now locked in a battle with the state for this young man. The state wants to preclude him from even being allowed to argue that his TBI and PTSD provide a defense to a DUI charge. They argue that since a DUI charge does not require any proof of the element of intent, that a mental responsibility defense is prohibited. I do not agree, since Wis. Stats. sec. 971.15 clearly refers to not only the element of knowing right from wrong, but also to the element of being able to conform one’s conduct to the requirements of the law.

This young man sacrificed a bright future for his sense of duty and his love of his country. As a result of the brain injury that he suffered, he cannot control his behavior as he used to, or as a normal person. Nevertheless, because of the so-called war on DUI, the state wants to prohibit this war hero from even raising the mental responsibility defense. Our law firm, and myself in particular, will fight for this young man as long as it takes. We will go to trial, we will go to the court of appeals, we will go the Wisconsin Supreme Court, and we will go to Washington, if we have to.

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