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. Attorneys gain this experience over time, by being in court and either cases.
For DUI cases, which involve a great deal of science in addition to just knowledge of the basic governing laws, this experience is one of the most critical things an attorney needs to be successful.
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 1994, and I''ve come to believe that making this assumption too quickly and in too many cases and advising the client to plead guilty is the single most important mistake attorneys make in representing individuals arrested for DUI/DWI.
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. Often times these are the same lawyers that charge low fees. Vigorously defending DUI cases requires the lawyer to invest the time and energy necessary to research the facts of the case as well as the law and prepare a full defense. Many lawyers just won't devote that much time to the case, and they advise the client to plead guilty without fully exploring every facet of the case.
In fact, the breath test, the blood alcohol level test, and the roadside field sobriety tests all have potential built-in flaws which can be exposed in the right cases and can be the difference in the outcome of the case.
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 write more about these in a minute.
Is it more costly to defend than to plead guilty?
Sure it is. But with your freedom, your money, your license and your future at stake, every potential defense should be explored. And it may cost less than you think.
Mistake 2
Assuming the BAC result can not be challenged.
Another common mistake lawyers make is not contesting the BAC result because they believe that they will not be successful.
In fact, blood/breath alcohol results can be challenged several ways.
* the initial stop of the vehicle was improper
* the arrest was made without probable cause
* the arrest did not occur within 3 hours of driving
* the prosecution can not exclude the possibility of consuming alcohol after ceasing to drive the vehicle - common in accident cases
* there was inadequate supervision during the pre-test observation period
* you were not told not to burp during the observation period
* you were not asked if you burped prior to providing each breath sample
* you burped but did not disclose it to the officer
* you burped and did disclose it, but the officer did not start the observation period over.
* you had something in your mouth, such as chewing tobacco.
* you were on an Atkins diet.
* you have diabetes.
* you have dentures.
* you work with solvents.
* an alcohol antiseptic was used when blood was drawn.
* your blood was not drawn by an authorized person
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 20 minutes before giving the test to make sure you don''t hiccup, burp, or throw up, 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 hiccuped, 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 do this, settling instead for just the complaint.
Mistake 4: Not Filing A Motion to Suppress
Not filing this pre-trial motion 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 a broad range of questions, and . his testimony can be recorded and used at trial as well as in plea bargaining.
If the testimony is different in the pre-trial hearing than it is later at the trial, your case is stronger, and experience has shown that it is not uncommon for some of the details of the testimony to change.
Mistake 5: Not Personally Checking Out The Arrest Location
Many lawyers don't visit the arrest location, and this oversight 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. Similarly, a winding road could explain what the officer describes as 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 judge or jury.
Again, an example: An officer may testify that he observed the vehicle weave a certain number of times over a certain distance on the road. However, there may not have been enough time for you to weave this many times in a given stretch of road and when . illustrated by your attorney, this can be very persuasive.
Mistake 6: Not Exploiting The Advantage of The "Training Manual" For Roadside Tests
The National Highway Traffic Safety Administration Field Sobriety Testing Training Manual sets out the procedures that police are supposed to follow when they ask people to perform field sobriety tests. . . Most lawyers know little about this manual, nor the rules or the procedures that are to be followed. A very few lawyers actually take training courses themselves to become certified and qualified to give these tests.
Make sure any lawyer you consider hiring is familiar with this manual. If he/she doesn't own it, at the very least he/she should have studied it and should be familiar with what is in it. 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.
If the directions in the manual weren't followed the validity of the field sobriety tests can be attacked and a successful challenge may result in the test evidence being excluded at trial, which weakens the prosecution's case. I've found that in an extremely large number of cases, the police do things inconsistent with the directions in the training manual.
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.
In addition to failing to follow directions for tests in the manual, sometimes officers ask people to perform tests that are not even in the manual
If you were asked to take a test not in the manual (and there are only three in the manual), then your lawyer may be able to get that evidence excluded altogether. Interestingly, I have found that 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 government's case and defend you by showing that improper field sobriety tests were used or that the tests used were administered improperly
Mistake 7: Not Explaining The Consequences of a Conviction or a Guilty Plea
If your lawyer doesn't advise you about consequences resulting from a conviction, this may be malpractice.
Why are these important?
The consequences/sanctions of a DUI conviction will absolutely include a license suspension or revocation, and may also involve a jail sentence, a significant fine, the subsequent inability to rent a car, substantially higher insurance rates, and loss of your job (particularly if your job involves driving).
Unfortunately, this mistake is all too common among lawyers.
You must take these extra penalties into account when deciding to plead guilty.
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.
However, it is often a sound strategy to keep the client off the witness stand and to simply focus on creating a reasonable doubt for the judge or jury.
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 judge's or 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 experts in DUI law say that someone who isn't a specialist should consult one. Just as you wouldn't want your foot doctor doing your brain surgery, you don't want a divorce lawyer, a business lawyer or a general practice lawyer handling your DUI / DWI defense in Virginia. Find and hire an attorney with education and training specifically focusing on defending people charged with DUI / DWI.
The reason for this is simple: Virginia DUI / DWI law is complex. It involves an abundance of substantive law, constitutional principles, evidentiary issues and scientific principles. Knowing how to defend a DUI case in Virginia 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 a minor offense. The reforms of the 80's and 90's, the tightening of the standards defining what DUI is, and the increasingly harsh penalties imposed have made these cases very important and quite complicated
In order to maximize your chances of success, you should hire the best Virginia DUI defense attorney you can afford so your case is as strong as possible.
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