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Email: dwgenis@msn.com
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 for over 25 years and I’ve come to
believe that the single largest mistake that inexperienced and/or incompetent
attorneys make in representing individuals arrested for DUI. is that the case
can’t be won. No wonder so many lawyers end up pleading their clients
guilty.
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, tens of thousands of dollars in increased
insurance over several years, and contemplating life without a driver’s
license), 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 two hours.
the
results are under .08% or more and the retest is below .08%.
the results
and the retest suggest that it is not your blood.
you burped and the
officer did not start the observation period over.
you had something in
your mouth, such as chewing tobacco, or gum.
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 20 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 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, 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. I have been known to go to the arrest scene even before a
prospective client comes in for his/her first appointment. Pictures of the spot
where the tests were given are almost always helpful..
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 may be 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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Darryl W. Genis
Attorney At Law
3 West Carrillo
Suite 203
Santa Barbara California 93101
(805) 966-0812
California DUI / BUI Defense Attorney serving:
Santa Barbara, Ventura and San Luis Obispo
Since graduating from Southwestern University in 1980 Darryl W. Genis has been helping clients fight their drunk driving charges. His experience, professionalism and dedication to protecting his clients’ rights and freedom make him an excellent choice for your BUI / DUI attorney. |
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