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Five Myths about Defending Accused Drunk
About Defending Accused Drunk Drivers
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. 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
Nearly two million drunk-driving cases are filed by law
enforcement officers around the country ever year. 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
MYTH NUMBER 1: Most people accused of this crime are
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
In the overwhelming majority of drunk-driving cases in
which police obtain a chemical test, an infrared breath
analysis machine is used, not a blood test. This primary
evidence is vulnerable to attack by a skillful
Most attorneys have no idea how woefully inadequate
infrared breath machines 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
There are at least 30 ways to rebut the evidence from
these machines if the attorney understands how the machine
works, what causes them to malfunction, and that they are
nonspecific for alcohol. 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. A defense attorney
can obtain a pretrial ruling that the tests and their
alleged indication of impairment must be excluded from
evidence due to lack of scientific foundation and faulty
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
The defense should leave no stone unturned. These cases
require detailed investigations, 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
A substantial number of drivers whose licenses are
suspended continue to drive. 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 they had something
to drink before the police stopped them. 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
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
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 laws. 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 the 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
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
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 a
convicted drunk driver will increase 500 percent to 1,000
percent above the premiums paid before the conviction (if
coverage isn't canceled). 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
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.
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 quarter.
Recipients of unemployment benefits who have drunk-driving
convictions have had their benefits eliminated.
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
Professionals (like attorneys and judges) may be
disciplined by their professional regulatory authorities.
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
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.
In the few states that have abandoned the right to jury
trials for the misdemeanor drunk-driving cases, 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
MYTH NUMBER 5:
Drunk-driving cases are just like any other criminal case.
Nothing could be further 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 ballistic 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
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. 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
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. A few states
like Louisiana and Texas have ruled that their state
constitutions provide protection against such arbitrary
searches and seizures.
Manifestly unfair judicial decisions have been rendered in
many other areas in an effort to stamp out drunk driving.
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.
Reprinted from TRIAL (MARCH 1993)
Copyright :Association of Trial Lawyers of America
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