DUI FAQs - Five Myths About DUI

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Myth Number 1: Are Most People Accused Of This Crime Guilty?

This is perhaps the most troubling myth - one fostered by attorneys and the general public. In my opinion, an attorney who believes this should never represent a person accused of drunk driving. Such a mindset can eliminate objectivity and impede an effective defense.

Most attorneys have no idea how woefully inadequate breath test 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 and the general public assume that, since the state has approved the machine, its accuracy and reliability are not subject to challenge. There are many ways to rebut the evidence from breath alcohol machines if the attorney understands how the machines work, what causes them to malfunction, and that they are non-specific for alcohol.

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 is actually impaired or in some way 'a less safe driver.' Scientific studies have shown that since 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.

Any other 'observation' evidence from a police officer will generally be inconclusive and subject to several interpretations by experts or attorneys. For example, bloodshot eyes can be caused by 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 to which they have been exposed. Much 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.

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Myth Number 2: Is Drunk Driving Is A Minor Offense?

Once 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 long gone.

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. 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.

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 accused persons need attorneys in the first place-to investigate the case thoroughly and recommend the best alternative.

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Myth Number 3: Can Any Attorney Defend An Accused Drunk Driver?

If a friend or relative asked me for help on a matter involving asbestos litigation, my response would be to consult an expert in the field. 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 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.

After a conviction, these clients soon learn what most drunk driving defense practitioners 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 likely. These cases also carry a plethora of other consequences that will confront the convicted driver days, months, or even years after the conviction.

Consider these DUI consequences as prompting an increase in insurance costs. Moreover, 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.

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Myth Number 4: Are DUI Cases Winnable?

This is the most common myth. Not only do members of general public believe this; so do many attorneys. Experienced drunk driving defense lawyers 'win' many cases for first time offenders when there is no evidence of a wreck or other obviously 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 formula for success is to investigate exhaustively; conduct pretrial discovery and motion practice aggressively when practical; use evidentiary maneuvers and procedural devices skillfully; or present a well-conceived, thoroughly choreographed trial with expert witnesses.

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Myth Number 5: DUI Cases Are Just Like Any Other Criminal Case

Nothing could be farther from the truth. Consider the typical 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 testing usually is not required to be 'preserved.' Video and audio tapes relating to a traffic stop, field sobriety tests and law enforcement informing a driver about constitutional rights are not required so they are rarely taken.

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.

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.

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Myth Number 2: Is Drunk Driving Is A Minor Offense?Myth Number 3: Can Any Attorney Defend An Accused Drunk Driver?Myth Number 4: Are DUI Cases Winnable?Myth Number 5: DUI Cases Are Just Like Any Other Criminal Case

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