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The Top Mistakes Lawyers Make in Drunk Driving Cases

Mistake 1-Assuming the case can't be won
I have over 18 years of trial experience. Which means I have seen all the tactics that the prosecutor is going to use, and how to combat them. Most attorneys give up far too early. I see it all the time in the courtroom.

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.

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. Further, we are less expensive than other attorneys who will take a great deal of your money just to plead you guilty.

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. In many cases, the license suspension hearing can provide valuable evidence to be used at a DUI trial.

Plus, 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 stop of the car was not lawful

* the arrest was not lawful

* the chemical test is not accurate

* you did not in fact refuse the test

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. ( ask a potential lawyer to show you Title 17- he/she should have a copy within arms reach if he is a serious DUI attorney)

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

* properly interpreting the results

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 supress
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.

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
Most lawyers don't visit the arrest location. And this can be exceedingly crucial in some cases.

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 we 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. ( again, ask a potential lawyer to show you the manuals- He should have a copy if he is a serious DUI attorney)

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.

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. I get calls all the time from individuals asking if I can help solve a problem as a result of there plea that was not explained to them. You must take these extra penalties into account when deciding to plead guilty.

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.

Mistake 9-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 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.

Please feel free to contact our office at 800.978.0186 or info@placercountyduiattorney.com for answers to any questions you may have about DUI charges or arrests. It's necessary for you to hire the best attorney you can afford, and not choose an attorney based solely on cost.