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FREE ILLINOIS DUI CASE EVALUATION
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 many 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—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 Illinois 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
- you burped and the officer did not start the observation period over.
- you had something in your
mouth, such as chewing tobacco.
- 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 Most
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 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
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 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. 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 no 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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