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People's Law Guide

 

ADHD, Asperger's Syndrome, and Autism Can Get You Arrested

03/23/12

Educators, therapists and medical professionals, largely prodded by parents of children with Attention Deficit Hyperactivity Disorder (ADHD) and Asperger's Syndrome (AS,) have helped millions of children living with these ailments to reach their fullest potential. While parents, teachers, social workers, physical therapists, mental health counselors and physicians have obtained considerable insight into understanding ADHD and AS, very few police officers, prosecutors, criminal defense attorneys and judges have acquired such sophistication and knowledge. That's why professionals who work closely with persons having ADHD and AS now know these individuals, especially teenagers and young adults, are over-represented among persons arrested and convicted of criminal offenses. Parents of ADHD or AS offspring, and those living with these ailments, need to know not only do these learning impairments and medical conditions increase the prospects of being arrested, but also what specific measures should be taken to avoid involvement with the criminal justice system or respond should such situations arise.

Attention Deficit Hyperactivity Disorder (ADHD)

Persons with ADHD have difficulty controlling impulsive behaviors, maintaining focus of their attention, and in some cases may be overly active, according to the U.S. Centers for Disease Control and Prevention (CDC). The "most common core features," according to the Attention Deficit Disorder Association, are:

  • Distractibility (poor sustained attention to tasks)
  • Impulsivity (impaired impulse control and delay of gratification)
  • Hyperactivity (excessive activity and physical restlessness)
Researchers believe ADHD is likely caused by biological factors influencing neurotransmitter activity in parts of the brain, the Association reports. ADHD often runs in families and if a single family member has been diagnosed, there's a 25% to 35% likelihood someone else in the family has it too, as compared to just a 4% to 6% occurrence rate in the general population, the Association's website explains. Individuals suffering with ADHD have been found to have less glucose in locations where the brain directs attention and controls impulses, the Association notes.

Four and a half million children 5 to 17 years of age have been diagnosed with ADHD, according to CDC statistics from 2006. About half of teens 13 to 17 years of age with ADHD treat their condition by taking medication, CDC determined in a 2003 study. Also according to CDC:

  • 9.5% of boys and 5.9% of girls have been diagnosed with ADHD.
  • ADHD among males is reported significantly more often in families with incomes below the 100% poverty line, though rates for females were not significantly different across various poverty levels.
  • The rate of ADHD diagnosis in Florida and across the southeastern United States is much higher than in most other parts of the Nation.
  • What this Means for Those with ADHD:

    The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, provides a long list of ADHD characteristics which could easily cause a police officer to wrongly suspect a motorist with ADHD is impaired by alcohol or drugs or is arrogantly interfering with the officer's job. Here is a sampling of the most common ADHD symptoms:

    • failing to pay close attention to details
    • makes careless errors
    • easily distracted / difficulty sustaining attention on tasks
    • seems to disregard directives
    • fails to adhere to instructions
    • demonstrating forgetfulness
    • exhibiting restlessness
    • fidgeting with hands and / or feet
    • excessive talking
    • lack of self control
    • blurting out responses prior to questions or instructions fully stated
    • extreme impatience

    ADHD & a Propensity for Trouble:

    Those with ADHD not only suffer academically, but they:

    • have more school suspensions (14% of the ADHD population vs. 2% of the general student population)
    • have more "adversarial" contacts with law enforcement agencies (19% of the ADHD population vs. 3% of the general student population)
    • are more likely to be "admitted" into juvenile justice facilities (5% of the ADHD population vs. 1% of the general student population)
    • are more likely to abuse illegal substances and engage in what law enforcement agencies consider "aggressive behavior" or "delinquency"
    • are more involved in auto accidents and are more likely to cause vehicle crashes (and more likely to be injured in vehicle accidents)
    • more likely to be cited for traffic infractions, especially speeding
    • more likely to have their driver licenses suspended or revoked
    • are more likely to try illegal drugs at earlier ages than their peers
    • comprise 40% of adult cocaine and opiate abusers
    • have a 33% likelihood of abusing alcohol during their lifetimes
    • are more likely than those without ADHD to be arrested, to be convicted, and to be incarcerated Asperger's Syndrome (AS)

    Persons with AS are born with a neurological condition which delays social-emotional development, though their intellectual abilities are unimpaired, according to Asperger's Association of New England (AANE). In fact, individuals with AS often have above IQ scores, though one's cognitive potential can be at odds with their ability to meet the demands found in daily life, referred to as adoptive skills. Teens with AS often display emotional reactions of persons two-thirds their age, though development may continue progressing, albeit slowly, well into adulthood, AANE's website reports. AS, like ADHD, frequently runs in families. Though estimates of its frequency of occurrence vary greatly, the National Institute of Child Health and Mental Development speculates 1 in 500 people have some form of AS, with males four times more prone than females. Recently added to the Diagnostics and Statistical Manual IV in 1994, AS was often mis-diagnosed as ADHD or simple rudeness or poor behavior, CDC notes. AANE's website states that 50% of those having AS may be undiagnosed. Whether it should continue to be referred to specifically as AS or more generally as a disorder within the autism spectrum is a point of heated debate. Still, there is no doubt that life is more complicated for those whose style of learning and ability to interact with other people has been impacted. While traits vary among those affected, people with AS typically have difficulty understanding forms of nonverbal communication, such as "facial expressions, vocal expression, body language, gestures, speech volume, and pauses," according to the organization. Also, persons with AS can have difficulty:

    • Avoiding commenting on personal thoughts others may find insulting or offensive.
    • Engaging in typical socializing behaviors.
    • Expressing their feelings or understanding the feelings of others.
    • Controlling their impulses.
    • Appreciating someone may not have the same personal interest in them which they have in the other individual, sometimes causing one with AS to mistakenly believe their sexual overtures are welcome.
    • Demonstrating empathy toward others.

    Other common AS characteristics, according to AANE, include:

    • responding unusually to environmental stimuli (occurrences) which most people are able to disregard.
    • being hypo or hyper sensitive to touch, sound taste and / or sight - including bright lights or loud sounds.
    • difficulty responding appropriately when confronted by stress or situations new to them.

    Those with AS are Likely to Confront Legal Issues:

    Naivety can cause those with AS to be singled out for victimization. "They are compliant, sexually unsophisticated, easily manipulated, and difficult witnesses," according to an article written for the State Bar of Michigan by Richard McNally, Ph.D, a psychology professor at Harvard University. In addition to being at high risk for being sexually exploited, children and teens with AS are also especially vulnerable to theft and at being bullied, McNally added.

    Having AS can also raise the risk of being arrested. People with AS sometimes have specialized interests, often relating to computers, transportation vehicles or other curiosities. These fascinations or obsessions toward very narrow interests arise at a very young age, which is sometimes labeled as "the little professor syndrome." Once reaching their teens or early adulthood, this intense focus sometimes brings those with AS into contact with the criminal justice system.

    At 15 years of age, New York City resident Darius McCollum, who has AS, possessed sufficient knowledge to hijack a Manhattan subway train, taking it from Herald Square in mid-town to the station underneath where the World Trade Center stood at the time. Later, McCollum was sentenced to jail for having entered undetected into the subway's control center and then engaging the emergency breaks on the "N" train, all impersonating a uniformed transit official sorting through the resulting technical chaos. Despite their best efforts to keep McCollum away from their equipment, employees of the Long Island Rail Road, Metro-North and the New York City subway systems all fell victim to his exploits, including an instance when he fooled them into believing he was a railway consultant by speaking so knowledgeably about safety devices in newly acquired locomotives. In June, 2008, McCollum, at 43 years of age, was arrested at Manhattan's 59th Street / Columbus Circle subway station. Dressed in clothes similar to a transit uniform, McCollum also wore a hard hat, had gloves marked with the subway logo and possessed paperwork depicting the subway system, according to police reports. Criminal charges included trespass, impersonating a transit official and possession of burglary tools for what became his 23rd transit-related offense, including five arrests for stealing busses.

    A number of "high-tech whizzes" charged with criminal offenses have blamed AS for inducing them to "hack" into computer systems. These fixations, according to their defense attorneys, were motivated by curiosity or fun, not by an intent to break laws or cause harm. Viachelav Berkovich, at 34 years of age, was sentenced to a 55 month long prison term for hacking into the U.S. Department of Transportation's interstate trucking website over a three year duration. Using information stolen from DOT computers, the men hired trucking firms to haul cargo without paying them in excess of $4 million in freight fees. Both men began serving their prison terms in 2009. A Federal judge cited Berkovich's AS among the reasons why he was given a more lenient sentence compared to his 36 year old co-defendant who received a 70 month term.

    Owen Thor Walker, who taught himself sophisticated computer programming and encryption techniques, avoided what could have been a seven year term of incarceration when pleading guilty in New Zealand to 6 charges of cybercrime. Before reaching his 18th birthday, Walker wrote software which he sold to an international ring of computer criminals responsible for more than $20 million in thefts. Noting Walker had AS, a judge in 2008 limited his punishment to a monetary fine equivalent to just $11,000 in U.S. currency.

    This fascination with technology also leads some with AS to steal electronics, which they later disassemble, wrote Susan London in April, 2009, for Clinical Psychiatry News.

    When interviewed by The New York Times, Yale University professor of child psychology Fred Volkmar, a leading AS expert, told of a student with AS whose intense staring at females in a college cafeteria caused police to be dispatched on multiple occasions.

    Difficulty responding to stressful situations, especially those which are unfamiliar, can turn relatively routine matters into circumstances resulting in criminal arrests. Some behaviors lie outside the control of persons with AS, notes Sharon Patrick, a Client Services Specialist in the Wisconsin Public Defender's Office. A flashing light on a patrol car could prompt someone with AS to flee. Their lack of social awareness may also lead to a failure to recognize law enforcement officers as authority figures and common police interrogation techniques may generate false confessions, she added.

    ADHD / AS - TRAFFIC & CRIMINAL CASES

    ADHD and AS are separate medical conditions sharing numerous similar symptoms. A surprising number of people have both. When cormorbidity of the two occur, ADHD is believed to contribute more toward impulsivity, short attention spans and hyperactivity than AS does. Frustration or anger arising from interruptions of favored activities or set routines is likely caused by the AS. Writing for the Apserger's Association of New England's website, Daniel Rosenn, M.D. explains that confusion between ADHD and AS arises, in part, from both being "spectrum disorders." Despite recent developments leading to a better understanding of ADHD and AS, it often remains difficult to determine at what point a hobby becomes an obsession or when a loss of interest first becomes worrisome. Even when making use of multiple accepted tests, diagnoses' remain subjective. With trained educators, social workers, psychologists, psychiatrists and other physicians at times experiencing difficulty deciding whether someone's behaviors and traits places them into the parameters of having either ADHD or AS, or perhaps even both, it's not surprising that law enforcement officers and the prosecuting attorneys who inherit their files don't know that some of the cases they are handling don't involve acts committed by "common criminals." The very actions and behaviors we most expect from an individual having ADHD or AS can easily cause a law enforcement officer, whose suspicion is aroused by out-of-the-ordinary behavior, to believe she or he is confronting someone who drank too much alcohol, is high from abusing illegal drugs, or whose conduct was otherwise motivated.

    To a police officer, a driver with ADHD or AS may look drunk or high. Flying High Farm, a private mental health practice in Massachusetts, recommends motorists with neurological medical conditions carry an ID card which alerts police officers that traits which might normally raise suspicion of alcohol or illegal drug use are explainable for other reasons.

    There's no way of knowing how many motorists with ADHD or AS are being wrongfully criminally charged with DUI offenses, when they, perhaps, should have otherwise been cited for non-crime infractions such as careless driving or following the vehicle ahead too closely. The inherent problem with ADHD teens who drive, according to Marlene Snyder, Ph.D., associate professor at Clemson University and an author of a book entitled "ADHD & Driving: A Guide for Parents of Teens with ADHD," is that they are often less mature then their peers, easily become inattentive, drive fast to make up time lost to poor time management skills, and are prone to act impulsively.

    Compared to other young motorists, Snyder has learned those with ADHD:

    • are involved in three times as many car crashes.
    • are almost four times more likely to be in an auto accident.
    • are six to eight times more likely to have their driving privileges suspended or revoked due to bad driving.

    Parents should also verify ADHD teens are taking their prescribed medication, since those doing so are about one-third less likely to make inattentive driving errors then compared to those not medicated, Snyder found. In a 2007 article appearing in a periodical titled Consultant for Pediatricians, various authors suggested that teens with ADHD minimize driving distractions by setting the car radio before shifting from park to drive and don't eat and drink, or use a cell phone. Parents should limit nighttime vehicle use and forbid sons or daughters with ADHD to have other teen passengers during the initial six months, the authors added. For good reason, Snyder recommends parents of these teens with neurological ailments add an umbrella policy to increase coverage limits on their auto insurance.

    Young adults with AS confront issues similar to those with ADHD, including being easily distracted, according to a website for Flying High Farm, a private mental health practice in Massachusetts. Those with AS "may have trouble dealing with unexpected situations," the website states. When possible, avoid taking new or unfamiliar routes since they become upsetting and distracting, the website ehow.com comments. Both Flying High Farm and ehow.com remark that persons with AS require longer periods of driver training then do other teens, with ehow.com recommending training or practice sessions lasting twice the typical length.

    PRESENTING THE APPEARANCE OF BEING DRUNK OR HIGH

    More than 788,800 motorists were arrested on DUI charges throughout the U.S. during 2007, according to the Federal Bureau of Investigation. We'll never know how many drivers taken into custody are not abusing alcohol or drugs but are acting oddly, possibly because of ADHD or AS. It's not surprising, however, that drivers with neurological medical ailments come into frequent contact with police officers, says Snyder, the Clemson University associate professor who writes on ADHD.

    There's no doubt the same symptoms, traits and characteristics which physicians and mental health counselors refer to as telltale signs of having either ADHD, or AS, or both, can and do cause people to be "locked up" on criminal DUI charges.


    Common Reasons Police Pull Over Motorists' Vehicles
    What the Police Officer Sees Attention Deficit Hyperactivity Disorder Asperger's Syndrome
    Lane Straddling Consistent with ADHD Attention Lapses & Inferior Motor Control Consistent with AS' Attention Distraction
    Weaving (Even Within a Lane) Consistent with ADHD Attention Lapses /& Inferior Motor Control Consistent with AS' Attention Distraction

    Common Reasons Police Suspect People are Drunk or High
    What the Police Officer Notices Attention Deficit Hyperactivity Disorder Asperger's Syndrome
    Thick or Slurred Speech Slurred speech & dry mouth, common side-effects of medications Speech therapy common for those with AS, sometimes due to low oral-motor muscle tone or for poor motor coordination making some sounds hard to say
    Fumbling Through Wallet / Glove Box Consistent with ADHD Attention Lapses & Inferior Motor Control Consistent with AS'Poor Motor Skills
    Unsteady Gait or Walking Consistent with ADHD Attention Lapses & Inferior Motor Control Consistent with AS'Poor Motor Skills

    Exercises Police "Administer" to Drivers they "Suspect" are Drunk or High

    Attention Deficit Hyperactivity Disorder Asperger'sSyndromeSyndrome
    Horizontal Gaze 3 times More Likely to Experienced Ophthalmologists
    Nystagmus Eye Test have eye Convergence Insufficiency, making focusing on nearby Objects difficult (Medical Doctors) say "HGN" is difficult for them to assess when indoors while in a controlled environment
    Walk-The-Line & Turn Test Consistent with ADHD Attention Lapses & Inferior Motor Control Consistent with AS'Poor Motor Skills
    One Leg Stand Test Consistent with ADHD Attention Lapses & Inferior Motor Control Consistent with AS'Poor Motor Skills
    Arm Extension Fingertip to Nose Test Consistent with ADHD Attention Lapses & Inferior Motor Control Consistent with AS'Poor Motor Skills
    Not Following Instructions Consistent with ADHD Attention Lapses & Inferior Motor Control Typical AS Trait Detected by Parents & Educators Poor Motor Skills impairing ability to perform tasks can cause it to appear that directions are being ignored.
    & Inferior Motor Control Poor Motor Skills impairing ability to perform tasks can cause it to appear that directions are being ignored.

    * David Granet, Ph.D., director of pediatric ophthalmology at Shirley Eye Center at University of California - San Diego.

    In an article written for the Federal Bureau of Investigation in 2009, Sam Goldstein, Ph.D., an instructor at the University of Utah School of Medicine, noted persons with ADHD "know what to do, but in the heat of the moment their sense of immediate need overwhelms their limited capacity for self-control. Acting impulsively, "their behavior might be inconsistent and unpredictable." More specifically, the FBI article notes the following about ADHD sufferers:

  • They fail to respond well to repetitive tasks
  • They don't pay attention well in "demanding circumstances"
  • With their low threshold for emotional arousal, they exhibit strong reactions
  • "Members of this hyperactive-impulse group face the greatest risk for coming into contact with the criminal justice system as they approach adulthood
  • "The worse an individual's ADHD symptoms get, the more likely that the individual might progress to criminal behavior"
  • PEOPLE WITH AS ARE ALSO AT HIGHER RISK FOR CRIMINAL OFFENSES OTHER THAN DUI

    Persons with AS, suffer from "mindblindness," a term coined by Simon Baron-Cohen, Ph.D., a University of Cambridge professor who researches AS and writes on his findings. Having a diminished or possibly complete inability to interpret nonverbal language or cues displayed by others, individuals with AS are frequently unaware they are engaging in behaviors others feel to be offensive, hurtful or humiliating. That's why people with AS are likely to blurt out insulting remarks which others would keep to themselves, such as "you're fat" or "that's an ugly shirt." Most people would stop speaking when detecting their remarks are unwelcome. However, people with AS are impaired at "reading" non-verbal signals which inform others that their comments or physical actions are undesired. Simply put, they don't know when the other person wants them to stop doing what ever it is they're doing.

    When someone's intuition, perception or ability to read non-verbal cues is hindered by AS, signals easily perceived by others were never received or understood. A criminal defense attorney with an appreciation of AS will call to the witness stand a psychiatrist, psychologist or other skilled professional, whose testimony will inform jurors that a defendant's neurological impediment may have precluded him or her from becoming aware that their actions, such as sexual overtures, were not desired by another person. Also, AS defendants making confessions during police questioning, often say things which are untrue. Why? Asking leading questions (the type answered with a simple "yes" or "no") often generates incorrect responses by those with AS, notes Sharon Patrick of the Wisconsin Public Defender's Office. A response is often given to please or satisfy, even if what is conveyed is known to be wrong. Also, people with AS become confused and disoriented in rooms they find small or uncomfortable. Simultaneously addressing multiple topics further confuses those with AS, she adds. Inappropriate comments or laughter, and the inability to display empathy, all classic AS characteristics, can be interpreted by police officers as indications of guilt. A defense expert witness will be able to testify why a so-called confession made by someone with AS can't always be relied on as being truthful and why behavior which seems to suggest guilt can be otherwise explained.

    The previously mentioned FBI article recommends "to advance the best interests of the individual and the public, courts should focus on combining appropriate treatment with punitive sanctions." Courts have considered learning disabilities such as ADHD to be a mitigating factor when determining an appropriate sentence.

    AS as a Legal Defense:

    Prosecutors must prove "beyond and to the exclusion of a reasonable doubt" that the person charged with breaking the law "intended" to commit a crime. In cases involving a rape charge, which in Florida s officially referred to as a "sexual battery," the prosecutor must prove that the defendant knew or should have known that the alleged victim didn't consent to participating in sex. During the trial, a prosecutor will typically tell jurors that if no words were exchanged, facial expressions and body language alone communicated to the defendant that his or her sexual overtures were unwelcome. If someone who pressed charges for having been sexually battered didn't verbally confront or physically resist, perhaps due to fear or embarrassment, the defendant would have to have relied on intuition to know their conduct was not being consented to. Someone with AS is hard pressed to pick up on what is so easily detected by others.

    The FBI articles note that someone charged with committing a crime involving "intent" to harm or damage, may be able to demonstrate that the charge should be reduced in severity to "reckless behavior" based upon having ADHD. With the Federal Government considering ADHD a disability if the disorder limits a major life activity, individuals appropriately diagnosed with ADHD have been found to be entitled to reasonable accommodations in the courtroom, just as they would be entitled to in a classroom or at their workplace. Such accommodations may involve providing additional time to answer questions, to have information explained or to confer with legal counsel.

    If found guilty, judges should consider whether a defendant's AS is a "mitigating factor" when determining the length of a sentence or whether probation or house arrest is more appropriate then days, weeks, months or years in jail or prison. A physician or mental health expert who previously provided treatment or counseling to the defendant can testify that incarceration, at all or for a long period of time, is inappropriate for someone with AS.

    How Police, Jail Guards, Court Personnel and Defense Attorneys Should Act TowardThose with AS:

    Since those with AS act and respond differently to settings than most others, the Wisconsin Public Defender's Office, advises persons working in the criminal justice system be mindful of the following when interacting with AS defendants:

    1. Limit "sensory input" by avoiding brightly lit, crowded and noisy places.
    2. Avoid small, confining rooms.
    3. Don't shout or speak loudly.
    4. Avoid touching someone with AS by surprise, especially without first informing that a touching will occur.
    5. Avoid misunderstandings by not using metaphors such as "don't pull my leg." Avoid making use of pronouns such as you or he, and instead say the names of persons.
    6. Don't expect typical responses to your body language and other non-verbal communication. Anticipate a lack of eye contact, understanding its absence is not a sign of deceit or a lack of respect.
    7. Avoid asking leading questions, as they generate incorrect responses. Address just one topic or issue at a time. Be prepared to repeat questions and to provide numerous and detailed explanations.
    8. Keep conversations short. What is typically accomplished in a single session will almost certainly require multiple meetings.

    Conclusion

    Arresting adolescents and adults for having ADHD and AS violates fundamental legal rights. We'll never know how many motorists with ADHD or AS are arrested on DUI charges who have not been high on drugs or impaired by alcohol. To be sure, many teens with ADHD or AS are not ready to drive at the same ages as their brothers, sisters or friends. Some persons with ADHD or AS should not be permitted to drive motor vehicles at all. However, if all motorists having less than ideal driving skills were charged with crimes, a high percentage of our relatives, friends and co-workers, along with many readers of this article, would be convicted criminals. The preposterous result of criminalizing deficient driving skills overburdens an already overextended criminal justice system by introducing into it at least thousands of persons yearly who didn't commit illegal acts. Sadly, prosecuting drivers who didn't commit criminal offenses saddles innocent people with long-term consequences of having a "rap sheet." Similarly, too many persons with AS are being criminally charged and convicted of offenses other than DUI, though they never intended to break the law. For these persons too, the consequences of being convicted of a crime, whether it be a misdemeanor or felony, are life-changing.

    People with ADHD or AS are more prone to act in ways which generate suspicion of wrong doing among police officers. Knowing this, mothers and fathers need to better prepare their offspring for the real-world situations which teens, young men and women and adults routinely confront. Educators, mental health therapists and physicians need to appreciate that too many of those with ADHD and AS are undiagnosed, wrongly diagnosed or are otherwise ill prepared to proceed in life as they reach ages where actions lead to consequences which are devastating to persons engaging in the conduct and also to those individuals exposed to it. Students with ADHD and AS need to be thoroughly educated that they'll face complexities beyond those experienced by most of their peers and will need to incorporate into their daily routines modifications and adjustments not needed by others. Then, the young people with ADHD and AS must come to accept that inconvenient but necessary adaptions must become a standard part of their lives, just as frequent monitoring of blood sugar levels and taking insulin injections are necessary to those with diabetes. Persons having responsibilities within the criminal justice system, including police officers, jail guards, medical personnel, prosecutors, criminal defense attorneys and judges, need to be aware that many of the defendants "passing through" either should have never entered into it or need to be provided with sentences which are appropriate for those with ADHD or AS.

    Who bears responsibility that so many criminal convictions are being imposed on persons with ADHD or AS? Quite simply, everyone reading this article does.

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