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DWI Facts
In most Texas DWI cases, there are 3 pieces of evidence open to one
interpretation of the law, include breath test/chemical tests were the regulations followed?
What is the validity due to lack of
regulations? DWI |
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Texas DWI /DUI Criminal Defense
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Texas DWI / DUI
laws are both political and complex. Moreover, since the laws
change so often and the consequences of even a first DWI / DUI
conviction are so severe, finding a lawyer who is experienced at
handling Driving While Intoxicated (DWI), Driving Under The
Influence (DUI) cases should be
your top priority. |
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 DWI / 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 DWI / 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
DWI / 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 DWI / DUI Case Can’t be Won
Since I’ve
been practicing, 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 /
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 Utah 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.
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 DWI / 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
hiccupped, 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.
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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 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. Incidentally, 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?
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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 DWI / 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 DWI / 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: DWI / 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 DWI / 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 DWI / DUI is not longer a minor offense. The
reforms of the 80's and 90's, the tightening of the standards
defining what DWI / 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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Boatwright & Hamilton,
LLP |
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1005 Broadway
Lubbock, Texas 79401
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747-8002 |
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Fax |
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Nicky Boatwright and Stephen Hamilton are Criminal Defense
Trail Attorney's in the state of Texas covering
Amarillo, Canyon, Andrews, Abernathy, Acuff, Amherst,
Anton, Arnett, Bledsoe, Brownfield, Cotton Center,
Crosbyton, Dickens, Floydada, Hale Center, Idalou, Lamesa,
Levelland, Littlefield, Lockney, Loop, Lorenzo, Lubbock,
Meadow, Morton, Muleshoe, New Deal, New Home, O'Donnell,
Olton, Petersburg, Plains, Plainview, Post, Ralls, Ransom
Canyon, Shallowater, Slaton, Smyer, Tahoka, Wolfforth,
Seminole, Tulia, Midland, Odessa. |
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