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.

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For DWI 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 DWI 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 DWI 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 DWI law for over 20 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 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.

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—Not Fighting the License Suspension

Another common mistake lawyers make is not contesting a chemical test refusal hearing because they believe that these hearings cannot be won very frequently. A revocation can be imposed in New York for refusal to take a breath or blood test.

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.
• 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 Atkins 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 DWI. 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 a 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 chemical test refusal hearing, the pre-trial suppression 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 times 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. I have not only taken the certification course. I am also qualified as an instructor of the certification course.

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/prison 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 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 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 DWI 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: DWI law is complex, it involves a lot of science, and a generalist cannot be everything to everybody. Knowing how to defend a DWI case involves considerable preparation, familiarity with the law, and knowing what motions to make and when. An expert in DWI 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 DWI is no longer a minor offense. The reforms of the 80's and 90's, the tightening of the standards defining what DWI 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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Phone: 631-204-0073 • Email: fred@dwi-attorney-fredfisher.com

Free Consultation and Review of Your Long Island, Southampton, Westhampton, Suffolk County, East Hampton, Hempstead, Central Islip, Quogue, NY DWI - DUI Arrest -- $250 Value

Call Today: 631-204-0073 or 1-877-KEEP-ME-OUT for your free consultation

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