The Top 10 Mistakes Lawyers Make in Drunk Driving Cases...And How To Avoid Them
Even though attorneys are schooled in the laws pertaining to a wide variety
of legal areas, a huge amount of expertise comes from practical experience.
Either by prosecuting or defending individuals or businesses.
For DUI cases, which involve a great deal of science in addition to just
knowledge of the basic governing laws, this experience may be the most critical
thing.
And because of the complexity of DUI cases, knowledgeable attorneys
consider them to be among the most difficult to defend. Because of this same
complexity, a great many attorneys make up to 10 big mistakes when it comes
to defending DUI clients...mistakes which can profoundly harm their clients
in terms of losing their license, paying considerable fines, being jailed,
having huge increases in their insurance rates, and the effect it could have
on their current or future job.
To protect yourself and to help decide whom to hire and how to plead, you
had better know what these mistakes are.
Mistake 1--Assuming the Case Can’t be Won
I’ve been practicing DUI law since 1968, and I’ve
come to believe that making this assumption and pleading you guilty is
the single most important mistake attorneys make in representing individuals
arrested for DUI.
You see, after getting the breath test result and the police report, many
lawyers simply give it up and advise the client to plead guilty.
In fact, the breath test, the alcohol blood level test, and the roadside
tests the arrested person has to perform all have potential built-in flaws.
Flaws which can make the difference.
For example, the results of a breath test can be challenged through a Motion
to Suppress, or evidence of your sobriety, or with cross examination of the
police officer or the state’s expert. I’ll say more about these in
a minute.
Is it more costly to defend than to plead guilty?
Sure it is. But with so much at stake (including considerable penalty fees
and wildly escalating insurance costs), the possibility of winning should not
be just dismissed. And it may cost less than you think.
And it’s not just client costs that are involved. You see, a lawyer
who just advises you to plead guilty, and who charges a low fee to take care
of that is just asking for a malpractice claim in many cases. Particularly
in cases involving a high profile person, a case resulting in serious injury,
or one where your livelihood is at stake.
Mistake 2--Not Fighting the License Suspension
Another common mistake lawyers make is not contesting a license revocation
hearing because they believe that these hearing cannot be won very frequently.
A revocation is imposed in California for refusal to take a breath or blood
test, or for failing it.
But it’s simply not the case that the revocation hearing cannot be won.
They can often be won based on technical defenses, such as:
- the sample was
not taken within three hours.
- the results are under .10 and the retest is below .08.
- the results are under .12 and the retest ios 20% or more off.
- you burped and the officer did not start the observation period over.
- you had something in your mouth, such as chewing tobacco.
- you were on an Adkins diet. you have diabetes. you have dentures.
- you work with solvents.
- an alcohol antiseptic was used when blood was drawn.
Moreover, by not contesting this hearing they don’t get to question
the arresting officer. And this may be the only time the arresting officer
can be questioned soon after the arrest, when his/her recollection is likely
to be most accurate.
Mistake 3--Assuming That The Breath Test Rules Were Followed
Virtually every state has rules and regulations concerning the breath test
given to people suspected of DUI. The critical point for the prosecution is
that these rules must be followed.
This leaves open attacking the results on the grounds that the technical
rules weren’t followed. Through conversations with other attorneys, I’ve
discovered that far too many lawyers don’t read the statute and regulations
covering breath testing.
Those that don’t know the regulations don’t realize that violations
of the rules introduced into evidence can show that the results are unreliable.
Further, showing this can be used to exclude the breath test results altogether.
Here’s an example. The testing officer is supposed to watch you for
at least 15 minutes before giving the test to make sure you don’t hiccup,
burp, or puke. Because these things can totally skew the test results. A number
of courts have excluded test results for this violation, even though the accused
may not have actually hiccupped, burped or vomited.
In fact, a host of criteria must be met or the test results will often be
thrown out. These include:
- the test operator having a current certification.
- the machine having a
current certification.
- calibrating the machine as often as required.
- changing the mouthpiece before the test is given.
- keeping a record of the temperature of the calibrating solutions in the
machine.
- keeping a log of the tests run.
- counting the number of times the calibration solution has been changed.
Thus, to defend you properly, a lawyer should get copies of the various logs,
maintenance records, and the operator’s license or certification. Sadly,
most lawyers don’t, settling instead for just the complaint and the arrest
report.
Mistake 4--Not Filing A Motion to Suppress
Not filing this pre-trial motion before a trial is a huge mistake
according to many experts, and maybe the most common mistake according to others.
Even though this motion doesn’t succeed very often, a case can be won by
filing it. While a stop is generally justified if you were weaving from lane
to lane, weaving within a lane may not make the stop justified. And whether they’ll
admit it or not, this motion may resonate with a judge.
Equally as important, even if the motion loses, it provides another opportunity
to question the arresting officer. The officer can be asked broad range of
questions. And his testimony can be used at trial as well as in plea bargaining.
If the testimony is different in the suspension hearing, the pre-trial hearing,
and again at the trial, the stronger your case is. And it is not uncommon for
this to happen.
Mistake 5--Not Personally Checking Out The Arrest Location
Many lawyers don’t visit the arrest location. And this can be
exceedingly crucial. One lawyer I know goes to the arrest scene even before
a prospective client comes in for his/her first appointment. And he takes pictures
of the spot where the tests were given.
Why? First of all, it could point out that the particular location made the
roadside test difficult to perform. For example, if there’s heavy traffic speeding
by on a highway. Or if the shoulder of the road used for the roadside test is
slanted. A slanting road automatically makes the tests more difficult to perform.
Or a winding road could explain erratic driving.
Seeing and knowing these things makes it much easier for your lawyer to ask
probing questions about the roadside test, and, in some cases, point out a
physical impossibility to the jury.
Again, an example: An officer may testify that you wove a certain number
of time on the road. But there may not have been enough time for you to weave
this many times in a given stretch of road. When illustrated by your attorney,
this is very telling.
Or, there may have been obstacles preventing you from driving with two wheels
on the sidewalk, which the police may claim you did.
Mistake 6--Not Exploiting The Advantage of The "Training Manual" For
Roadside Tests
The "Training Manual" is another example of rules that the
police must follow when they perform a field sobriety test . . . that is, the
roadside tests I just mentioned above. Most lawyers know little about this
manual and its rules. A very few actually take training courses themselves
to become certified and qualified to give these tests.
At the very least, this manual should be studied by your lawyer. He or she
will then know exactly what questions to ask the arresting officer to see if
he completely followed the manual’s directions. This can be powerful evidence frequently
overlooked by defense lawyers.
You see, if the manual’s directions weren’t completely followed, the
test’s validity can be attacked. At what point the test is attacked varies
by state. Wherever your lawyer does it, a successful challenge results in the
test evidence being excluded at trial. Which significantly weakens the prosecutor’s
case. I’ve found that in an extremely large number of cases, the police
do things inconsistent with the manual’s material.
Even more important, officers don’t always use objective scoring. The manual
explains how to score the tests and how to arrive at a final score. All too often
the officer simply subjectively decides whether or not you failed the tests.
Another facet of this is officers asking you to do more than the manual requires.
If you were asked to take a test not in the manual (and there are only three),
then your lawyer can get that evidence excluded altogether. Incidently, the
police commonly use tests that aren’t in the manual.
What’s the point? It’s simple: if your lawyer doesn’t know the
training manual, how can he/she attack the way the arresting officer used it?
Mistake 7--Not Explaining The Extra Penalties Coming With a
Conviction or a Guilty Plea
If your lawyer doesn’t advise you about the administrative sanctions
resulting from a conviction, this is malpractice.
Why are these important?
Because they can include license suspension or revocation, jail time, a significant
fine, inability to rent a car, substantially higher insurance rates, and loss
of your job (particularly if your job involves driving).
And this mistake is all too common among lawyers.
You must take these extra penalties into account when deciding to plead guilty.
If you’re not aware of these penalties, you cannot help but be the loser.
Mistake 8--Putting the Client on The Stand
Contrary to popular belief,
it is not typically a good idea to put the defendant on the stand, expert DUI
attorneys believe. This is primarily because they are not experienced witnesses,
often appearing to be nervous.
Moreover, a defendant who is put on the stand shifts the jury’s focus. The
objective of the defense is to show that the prosecutor’s case is not strong
enough to convict beyond all reasonable doubt. When the defendant is put on the
stand, however, the focus shifts to the credibility and honesty of the defendant.
The jury is thus forced to choose between the police officer and the defendant.
Plus, it gives the prosecutor the chance to make the defendant look like he’s
hiding something.
Is there ever a good time to put the defendant on the stand? Yes, to contradict
something the officer said.
Beyond that, your lawyer should stick to placing reasonable doubt in the
jury’s
mind.
Mistake 9--Attempting to Show The Officer Lied
Look, your lawyer doesn’t
need to make the officer sound like he lied to put reasonable doubt in the jury’s
mind. All he really needs to do is show how the officer might simply be mistaken
this time.
Why? Because the jury doesn’t want to believe that the officer is lying.
But it will accept the officer being mistaken. Not to mention, do you think the
officer will admit that he is lying?
It’s far better to simply paint the case as being about a cop jumping to
conclusions and making mistakes.
Mistake 10--Not Consulting
A Specialist
Attorneys
who are expert in DUI law say that someone who isn’t a specialist
should consult one. Just as you wouldn’t hire a criminal attorney to advise
on business law or divorce.
The reason for this is simple: DUI law is complex, it involves a lot of science,
and a generalist cannot be everything to everybody. Knowing how to defend a
DUI case involves considerable preparation, familiarity with the law, and knowing
what motions to make and when. An expert in DUI law has that knowledge.
He or she will quickly be able to spot potential defenses. He’ll know what
the investigation and discovery should be.
If your lawyer is not a specialist in this area, you may not be getting the
best advice and you may not have the strongest case.
You see, a DUI is not longer a minor offense. The reforms of the 80's and
90's, the tightening of the standards defining what DUI is, and the penalties
imposed have made these cases not just complex, but also important.
So it’s necessary for you to hire the best attorney you can afford so your
case is as strong as possible.
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