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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. 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 for over 10 years 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), 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—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
20 minutes before giving the test to make sure you don’t smoke, drink
alcohol, eat or regurgitate. 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 smoke, drink
alcohol, eat or regurgitate.
In fact, a host of criteria must be met or the test results will
often be thrown out. These include:
1. the test operator having a current certification.
2. the machine having a current certification.
3. calibrating the machine as often as required.
4. changing the mouthpiece before the test is given.
5. keeping a record of the temperature of the calibrating solutions in the machine.
6. keeping a log of the tests run.
7. 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 3—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 4—Not Personally Checking Out The Arrest Location
Many lawyers don’t visit the arrest location. And this can be
exceedingly crucial.
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 5—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
prosecutorís 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 6—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 7—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 DWI 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 8—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.
The information contained on this page is for educational purposes only. It is not intended to create an attorney client relationship. Copyright notice 2001 BLS.
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