The Prosecutor’s Role in DUI-DWI Cases:
Justice Must Come FIRST

By: William C. Head
Atlanta, Georgia

DUI prosecutions are motivated by many issues that are not based upon constitutional fairness or equity. Prosecutors, like all attorneys, are bound by ethical duties and a high standard of “fair dealing” with all litigants in our adversarial legal process. Often, the heat of battle causes these state-paid officials to become both political and competitive. When this occurs, justice can and does routinely suffer at the hands of a prosecutor’s vanity or ego, or outright criminal misconduct.

Competitiveness and “drive” is built in for anyone attending America’s law schools. Just getting into a top law school required fierce competition among potential candidates. This battle (to get into law school and then to compete with the other qualified candidates who are classmates) becomes a way of life for many attorneys by the time they receive their Bar cards.

As with other professions, excellence generally means WINNING. For prosecutors, however, JUSTICE must take the lead role, and winning must play second fiddle. The power to help put someone in jail (or, in some jurisdictions, cause the execution of the person) carries a tremendous responsibility to see that this power is not abused.

Prosecutors also must periodically stand for election. Many are first appointed to their posts by the governor of their state to act as the county or state attorney given the responsibility for accusing and prosecuting crimes within their jurisdiction. When the time for re-election rolls around, an opponent seeking to replace the prosecutor may investigate the actions (or inactions) of the incumbent in dismissing cases, reducing cases or (in some cases) LOSING noteworthy cases at trial. A high profile trial can end the tenure of an otherwise successful and diligent state or county attorney. Los Angeles County, California is probably the best know place for this phenomenon to occur in the United States.

Hence, the pressure to “win” always looms over the prosecutor’s office. Case dispositions are public records, for almost all criminal cases. Combing the prior files for unusual or inexplicable outcomes favoring persons charged with DWI (or any other crime) can be a large part of an opponent’s political attack on the current office-holder. This political tension, coupled with attorneys’ inbred desire to “win”, creates a rocky slope for defense attorneys to negotiate as the case goes from first appearance to trial.

In the late 20th century and in the current century, numerous states have passed legislation that purports to create a CRIME for prosecutors within the state to reduce or dismiss a DUI-DWI charge. Kentucky and Oregon have such statutes, and many cases are needlessly tried due to the legislative edict that threatens any prosecutor who negotiates a marginal case with becoming a criminal defendant for doing so. Such legislative overreaching is an improper misuse of the legislative process, and a constitutionally questionable practice. To say that every DUI-DWI case made by the officers of these states is a good, solid case is ludicrous. Yet, such laws are politically expedient even if asinine.

Like in many jobs, relationships are built and experienced DUI lawyers can approach an ethical and principled district attorney or state’s attorney with a proposal for a reduced charges or dismissal of charges in a pending DUI case. Knowledgeable attorneys in the drunk driving defense field will know which prosecutors to trust and which ones NOT to trust. Being able to find a “winning” defense or a flaw in the prosecution’s case, and then to be able to use that as a negotiating tool to avoid the risk of trial is generally limited to DWI lawyers who work in this field on a daily basis, not once a month.

Some prosecutors would listen to the presentation and immediately “fix” the problem by amending the accusation or information (the charging documents against the defendant) or possibly by locating an essential witness whose name was not known prior to the conversation with defense counsel. These people are cheaters, plain and simple. They know no loyalty and have no moral compass. They want to win more than they care about fairness, much less their tarnished reputations in the future. Criminal defense lawyers who handle criminal law matters every day quickly learn who these people are, and NEVER trust them with any pre-trial “disclosures”. Other prosecutors are highly honorable people who will “do the right thing” when confronted with a LOSER of a case, based on some latent flaw or defect in the case.

Our legal system derived from the English system. Both the American and English systems place an affirmative obligation upon prosecutors to disclose “exculpatory” (things that are favorable to the defendant’s case) information to the defense. It is NOT an option. However, the English system has safeguards and “teeth” in its rules and regulations that MANDATE compliance. One noted legal author states it succinctly:

Both England and the United States require prosecutors to disclose exculpatory evidence known to the police, but they take radically different approaches to implementing the prosecutor's duty. The English have legislated a comprehensive regulatory framework for police record keeping and revelation of case information to the prosecutor. They have also devoted significant resources to enforcing this regulation, including such measures as promulgation of appropriate forms and schedules, training of police and prosecutors, and the designation of particular police personnel to perform record-keeping duties. In the United States, by comparison, the absence of legislative or other regulation of police record keeping is starkly apparent. American legislatures have traditionally taken a "hands-off" approach to the regulation of police practices. Furthermore, we have not committed significant resources to the task of training police to record and reveal exculpatory evidence to prosecutors. Instead, we have relied on self-regulation by law enforcement agencies and the efforts of prosecutors.

See the full paper by clicking HERE.

In 2003, a prosecutor from Texas presented some thoughts about being an ethical prosecutor in juvenile court proceedings. The text of her written materials clearly identifies typical ethical guidelines that ALL prosecutors are required to follow.

This duty is one that helps form the fiber of the woven cloth that constitutes our American Judicial System. When prosecutors cheat, we all lose as a result of the injustice foisted upon the victim of the Prosecutor’s misconduct.

For more information on the American Bar Association’s Model Rules of Professional Conduct, see the following:

Model Rules of Professional Conduct