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Five Myths About Defending Accused Drunk Drivers
by William
C. Head
Reprinted with permission of TRIAL (March
1993)
Copyright the Association of Trial Lawyers of America
Almost every attorney is at one time or
another confronted with a client, friend, or family member
charged with drunk driving. Because accused drunk drivers
are immediately charged with a crime, drunk driving cases
represent the single largest category of criminal infractions
of all reported cases, with about 200,000 more cases processed
each year than all theft and larceny offenses combined.1
Even attorneys who do not generally handle criminal matters
are routinely asked how an accused person should proceed
in a drunk driving case.
In the 1960s, driving under the influence
of alcohol was considered a minor offense, leading to modest
fines; in the 1990s, it is considered the most serious misdemeanor
offense. In several states, repeat offenders are considered
felons.
Nearly 2 million drunk driving cases are
filed by law enforcement officers around the country every
year.2 These cases take up a large portion of the criminal
docket of most court systems. Because the penalties for
drunk driving have increased, many of those charged with
this crime now must seriously consider alternatives to pleading
guilty or nolo contendere. For the rest of the 1990s, the
absence of palatable alternatives for the accused driver
will lead to a dramatic increase in these trials.
Most attorneys harbor many myths and misconceptions
about this offense. These can lead to malpractice. In this
article, I will address five myths about defending accused
drunk drivers.
Myth Number 1: Most people accused
of this crime are guilty.
This is perhaps the most troubling myth—one
harbored by attorneys and the general public. In my opinion,
an attorney who believes this should never represent a person
accused of drunk driving. That mindset can eliminate objectivity.
In the overwhelming majority of drunk driving
cases in which a chemical test is obtained by police, an
infrared breath analysis machine is used, not a blood test.3
This primary evidence is vulnerable to attack by a skillful
practitioner.
Most attorneys have no idea how woefully
inadequate infrared breath machine are as evidence-gathering
devices. These machines are so unsophisticated that virtually
no scientist would ever trust the results as a basis for
scholarly research or scientific investigation. Yet attorneys
assume that since the state has approved the machine, its
accuracy and reliability are not subject to challenge.
There are at least 30 ways to rebut the
evidence from these machines if the attorney understands
how the machines work, what causes them to malfunction,
and that they are nonspecific for alcohol.4 Without doing
exhaustive research, no attorney would understand their
internal workings enough to cross-examine the state's witnesses
effectively on their alleged accuracy.
The "opinion" evidence gathered
by police officers typically consists of field or roadside
sobriety tests. These agility tests are supposed to indicate
that the person suspected of drunk driving was actually
impaired or in some way "a less safe driver."
Recent scholarly studies have shown that
field sobriety tests are not given uniformly, there is no
scientific basis for assuming they are valid, and most officers
either require the wrong tests or improperly instruct the
suspect on how to perform the tests.5 A defense attorney
can obtain a pre-trial ruling that the tests and their alleged
indication of impairment must be excluded from evidence
due to lack of scientific foundation and faulty instructions.
Any other "observation" evidence
from a police officer will generally be inconclusive and
subject to many interpretations by experts. For example,
bloodshot eyes can be caused by conditions other than drunkenness,
including contact lenses, allergies, or lack of sleep. The
defense attorney should analyze the evidence that will likely
be presented and take the time to investigate the medical
background of clients and the environmental contaminants
they have been exposed to. Most alleged evidence of intoxication
can be neutralized or eliminated from the state's presentation
with findings from this investigation.
The defense should leave no stone unturned.
These cases require detailed investigation, as does a complex
murder case that involves fiber evidence, ballistics tests,
or other intricate issues. Attorneys who do not investigate
thoroughly and defend the client aggressively do the client
a disservice and expose themselves to possible liability.
In addition, they harm the legal profession by failing to
fully represent the client.
Myth Number 2: Drunk driving is
a minor offense.
Many veteran attorneys remember when drunk
driving convictions led to fines of $50 to $150, with no
suspension of driving privileges and no penalties beyond
going to court, paying the fine, and being chastised by
the judge. Those days are gone.
One reason some attorneys still do not give
proper consideration to these cases is that their only contact
with the client occurs when they enter the plea. The attorney
doesn't experience the penalties that later befall the client.
A client accused of drunk driving deserves
to be represented zealously because an unjustified conviction
will have repercussions lasting for the rest of the client's
life. Not all the "penalties" for these convictions
are legal in nature.
The stigma of a conviction can exact a severe
psychological toll.
A substantial number of drivers whose licenses
are suspended continue to drive.6 Typically, they do so
to provide for themselves and their families, despite the
possibility of being jailed for driving with a suspended
license. A surprising number are never caught. Yet, they
live in terror of being stopped at a license check or a
roadside sobriety checkpoint. Those unjustly convicted should
not have to live with this hardship.
Most of those convicted also suffer serious
financial and social consequences. In most states, a drunk
driving conviction can never be removed from a driving record,
so convicted offenders must endure the consequences of their
convictions for the rest of their lives.
Some blame themselves, because they know
that they had something to drink before they were stopped
by the police. However, it is not illegal for adults to
drive after drinking alcoholic beverages in any state. The
crime of drunk driving occurs only when the person's blood
alcohol level has exceeded the arbitrary numerical standard
set by the state, or when the person has demonstrated bad
driving that can be causally connected to impairment due
to a high blood alcohol level.
Most attorneys would cringe at the thought
that they might have poorly represented a client on a civil
matter and that the substandard representation could come
back to haunt them. Malpractice in drunk driving cases carries
the same potential for litigation, except that most convicted
drivers don't realize that their attorneys may not have
properly represented them when advising them to plead guilty
or nolo contendere without first checking into the facts
of the case. The client doesn't know whether the state's
case was validly made or based on an illegal stop. The client
is not familiar with the many ways that breath machines
may be inaccurate. That is why people need attorneys in
the first place-to investigate the case thoroughly and recommend
the best alternative.
Myth Number 3: Any attorney can
defend an accused drunk driver.
If a friend or relative asked me for help
on a matter involving antitrust litigation, my response
would be to consult an expert in the field. I would probably
inquire with the state bar association or phone colleagues
to try to locate an expert in antitrust law. I would try
to send the client to the most skilled lawyer I could find
who specializes in this area of practice.
When a prospective client walks into the
average law office and asks for help on a drunk driving
case, some attorneys will agree to represent that person
even if they have never handled criminal matters. The attorney
may advise the person to plead guilty or nolo contendere
(depending on state law) and work out an arrangement with
the court to keep his or her license with the least possible
suspension time. The attorney may not adequately investigate
the facts of the case or get copies of documents and other
evidence that are readily available through discovery.
These naive attorneys don't realize how
much exposure to liability they have if they counsel clients
to give up their constitutional and statutory rights and
plead guilty to this serious offense. Yet these same attorneys
would probably not hesitate to refer these same clients
to specialists if they were charged with securities fraud.
Some clients discover the folly of their
plea before the statute of limitations on their potential
malpractice claim against their former attorney expires.
A suit for malpractice may be the only way they can hope
to achieve some semblance of recovery for the devastating
effects of a drunk-driving conviction.
After a conviction, these clients soon learn
what most drunk driving specialists already know: The penalties
are not only serious, but like the Energizer bunny in the
TV ads, they keep going and going and going. Consequences
like license suspension, fines, community service, probation,
mandatory counseling or alcohol treatment, and possible
incarceration (even for first offenders) are well known.
These cases also carry a plethora of other consequences
that will confront the convicted driver days, months, or
even years after.
For example, in most states insurance rates
for convicted drunk drivers will increase 500 percent to
1,000 percent above the premiums paid before the conviction
(if coverage isn't canceled).7 In South Carolina, a person
with a five-year-old car carrying only liability coverage
can expect to pay $10,000 to $11,000 in additional premiums
over the first three years after a first offense drunk driving
conviction.8
This increase in insurance costs is well
known. But many attorneys are unaware that most credit bureaus
now include drunk driving convictions on credit reports.
This not only will affect future credit, but it may also
prevent convicted drivers from getting jobs where the prospective
employer runs a credit check in processing job applications.
A drunk driving conviction may bar or restrict employment
alternatives with a significant segment of the job market.9
Other penalties have been imposed on defendants
in different states. They include the following:
College students charged with or convicted
of drunk driving have been suspended from school for at
least one semester or one quarter.10
Recipients of unemployment benefits who have drunk-driving
convictions have had their benefits eliminated.11
Those in military service who are charged with or convicted
of drunk driving offenses can be summarily discharged or
required to take extensive alcohol education courses, restricted
to military bases, deprived of normal base privileges, or
saddled with other forms of punishment.12
Professionals (like attorneys and judges) may be disciplined
by their professional regulatory authorities.13
Many people wrongly convicted of drunk driving need not
passively suffer these consequences. Relief may be as close
as the nearest attorney who handles legal malpractice cases.
Any judge or jury will sympathize with former trusting clients
who can show that they lost jobs or homes and suffered other
serious penalties as a result of a conviction that should
never have occurred.
Myth Number 4: These cases can't
be won.
This is the most prevalent myth about these
cases. Not only do members of the general public believe
this; so do many attorneys. In fact. experienced drunk driving
defense lawyers "win" most cases of first offenders
when there is no evidence of a wreck or other manifest bad
driving.
The term "win" is in quotation
marks here because winning may mean having the charge reduced
to a different offense or otherwise obtaining a plea bargain
that avoids a conviction. The availability of alternative
plea arrangements for offenders varies from jurisdiction
to jurisdiction.
Where jury trials are available, success
rates for acquittal are surprisingly good. The national
average for acquittals is about 50 percent for those accused
of drunk driving if their cases are heard by juries. In
some jurisdictions, only about 20 percent to 30 percent
of all drunk driving arrests lead to a conviction, while
other states have an 80 percent to 90 percent conviction
rate.14
In the few states that have abandoned the
right to jury trials for misdemeanor drunk driving cases,15
defense attorneys will have a more difficult task convincing
a judge to acquit. However, this only applies to about 5
percent of all drunk driving cases.
The formula for success is to investigate
exhaustively; conduct pretrial discovery and motion practice
aggressively; use evidentiary maneuvers and procedural devices
skillfully; and present a well conceived, thoroughly choreographed
trial with expert witnesses, character witnesses, and other
tried-and-true tactics for successful defense of criminal
cases.
Many people know someone who has been charged
with this offense and pleaded guilty or nolo contendere.
Because most people believe that these cases are difficult
or even impossible to win, the average client will not challenge
the trusted attorney's "sage advice."
Attorneys who enter pleas of guilty or nolo
contendere for these clients will never win those cases.
Their files for these clients probably contain only three
or four pieces of paper, clearly indicating that they have
not performed "due diligence" investigations.
Granted, the client may have told the attorney that he or
she could not afford to contest the charges. But was the
client fully informed of the penalties that will follow
a conviction? If the client had known this, would the client
have chosen to seek a trial to challenge the state's case?
In explaining to clients why they should
consider pleading not guilty and letting a jury decide their
fate, I often compare receiving a conviction for drunk driving
with receiving a diagnosis of cancer. Getting rid of the
problem may be expensive and difficult and will involve
some risks, but the alternative is much worse.
This may seem like a bad analogy, but consider
the "cancer" that attacks the lives of convicted
drunk drivers. Some have committed suicide after incarceration
for drunk driving. Certainly, people who suffer from untreated
cancer (or their survivors) will not be pleased if they
later discover that the doctor should have recommended surgery,
not vitamin therapy. Similarly, people who suffer the consequences
of ill-advised guilty pleas to drunk-driving charges will
not be pleased with their lawyers.
Myth Number 5: Drunk-driving cases
are just like any other criminal case.
Nothing could be farther from the truth.
In many areas, the courts handle these cases differently
from other offenses. Here are two examples that make the
point.
First, consider the normal prosecution where
the state proposes to use physical evidence as part of its
case-in-chief. For example, suppose John Doe is charged
with murder, having allegedly shot Tom Jones. The prosecution
will normally order ballistics tests, take blood spatter
patterns and fingerprints, and collect other physical evidence.
That evidence is always subject to independent analysis
by the defense attorney representing the accused.
This is not true in drunk driving cases,
where breath tests usually are not required to be preserved.
Very few states require police officers taking a breath
sample to capture some of the breath so it can be analyzed
independently at a later date.16 Yet, all modern breath
analysis machines can provide sealed samples at a minimal
cost. The U.S. Supreme Court has said that it is perfectly
acceptable that such critical evidence is destroyed, even
where the state could have preserved it for less than $1
per sample.17
Another consideration is the use of roadside
sobriety checkpoints (roadblocks) at which drivers are briefly
detained to determine if they are under the influence of
alcohol or drugs. More than 40 states permit this, and the
U.S. Supreme Court has given its stamp of approval to this
encroachment on our Fourth Amendment rights.18 A few states
like Louisiana and Texas have ruled that their state constitutions
provide protection against such arbitrary searches and seizures.19
Manifestly unfair judicial decisions have
been rendered in many other areas in an effort to stamp
out drunk driving.20 A book could be written about these
unfair and unconstitutionally premised state court decisions.
Suffice it to say that the judicial system has erected difficult
hurdles for practitioners who defend drunk-driving cases.
No attorney likes to hear the word "malpractice."
However, I am convinced that faulty representation in these
cases is blatant attorney malpractice. Often, the attorney's
negligent handling of a drunk-driving case is attributable
to a defeatist attitude.
Lawyers must take these cases seriously.
Either they must fully educate themselves on this subject
so they can provide an effective defense, or they must refer
these cases to lawyers with expertise in the field. This
will protect these clients from great harm and provide the
lawyers with many peaceful nights, free from the concern
that they may have improperly advised a client.
--------------------------------------------------------------------------------
Notes
1 JAMES C. FELL, NAT'L HIGHWAY TRAFFIC SAFETY
ADMIN., REPEAT DWI OFFENDERS INVOLVEMENT IN FATAL CRASHES
(1992).
2 James C. Fell, Drinking and Driving in
America, 14 ALCOHOL, HEALTH & RES. WORLD 24 (1990)
3 J. GARY TRICHTER & W. TROY MCKINNEY
1 TEXAS DRUNK DRIVING LAW 37 (1991).
4 See generally REESE I. JOYE & JAMES
LOVETT, THE TRIAL WORKBOOK (1986).
5 Spurgeon N. Cole & Ronnie M. Cole,
New Proof That Field Sobriety Tests Are "Failure Designed,"
DWI J.: L. & SCI., Feb. 1991, at 1; Jonathan D. Cowan
& Susannah G. Jaffee, Field Sobriety Tests: The Flimsy
Scientific Underpinnings DWI J.: L. & SCI., Dec. 1990,
at 1.
6 Ralph Hingson & Jonathan Howland,
Use of Laws to Deter Drinking and Driving, 14 ALCOHOL, HEALTH
& RES. WORLD 38 (1990).
7 Adam Gelb, Georgia 's DUI Scandal: Car
Insurers Often Fail to Flag Driving Records, ATLANTA J.,
Nov. 6, 1991, at D1, D3.
8 SOUTH CAROLINA DEP'T OF INS., DUI: DIED
UNDER THE INFLUENCE (1991).
9 Action against employees varies from state
to state and employer to employer. In non-union companies
operating in states with no right-to-work laws, employees
have less protection against discharge based on a drunk-driving
conviction because they can be fired "at will."
Employers can justify the termination by citing "insurance
factors," diminution of employee versatility, or more
general grounds, such as the employees' "lack of judgment."
10 State v. Webb, No. ST-92-CR-1689 (Ga.,
Clarke County Super. Ct., arrested June 7, 1992) (before
trial for an alleged drunk-driving offense the University
of Georgia notified the defendant of a proposed immediate
suspension for one quarter).
11 Markel v. City of Circle Pines, 479 N.W.2d
382 (Minn. 1992).
12 U.S. CONST. amend. I, §8; Dep't
of Defense Directive 5525.7; U.C.M.J. Article 15.
13 See Gary Taylor, MADD at Lawyer, NAT'L
L. J., Mar. 9, 1992, at 2 (article about Texas sole practitioner
facing disbarment proceedings for drunk driving); sidebar,
NAT'L L. J., May 11, 1992, at 2 (citing Massachusetts case
where superior court judge retired after misconduct charges
based on an arrest for suspected drunk driving were brought
against him).
14 FELL, supra note 1.
15 See Blanton v. City of North Las Vegas,
489 U.S. 538 (1989). Nevada, New Jersey, and New Mexico
are among the states that allow no jury trial for first
offenders.
16 Only six states require preservation
of breath samples: Alaska, Arizona, Colorado, New Hampshire,
Oklahoma, and Vermont.
17 California v. Trombetta, 467 U.S. 479
(1984).
18 See Michigan Dep't of State Police v.
Sitz, 496 U.S. 444 (1990).
19 State v. Church, 538 So. 2d 993 (La.
1989); Higbie v. State, 780 S.W.2d 228 (Tex. Crim. App.
1989).
20 State v. Powers, 555 So. 2d 888 (Fla.
Dist. Ct. App. 1990), Bryant v. State, 410 S.E.2d 778 (Ga.
Ct. App. 1991); State v. Tosar, 350 S.E.2d 811 (Ga. Ct.
App. 1986)
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