Wednesday, April 22, 2009

10 Mistakes Lawyers Make In DWI 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 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 cases, knowledgeable attorneys consider them to be among the most difficult to defend. Because of this same complexity, a great many attorneys make 10 big mistakes when it comes to defending DWI 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.

1. Assuming the Case Can’t be Won

Making this assumption and pleading you guilty is the single most important mistake attorneys make in representing individuals arrested for DWI. 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. Records of the specific Intoxilyzer that you used should be examined.

2. 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. 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. Far too many lawyers don’t understand or know the regulations covering breath testing. Those that don’t know the regulations don’t realize that violations of the rules introduced into evidence, and other things that aren't 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 officer is supposed to observe you for 15 minutes before giving the test to make sure you don’t hiccup, burp, or puke, because these things can totally skew the test results. Odds are the officer wouldn’t have noticed if you had hiccupped, burped or puked.

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.
- the sample was not taken within a reasonable time of your arrest.
- there is only one test taken.
- the results of the two tests are no more than 0.02 apart
- you have dentures
- you work with solvents

Thus, to defend you properly, a lawyer should get copies of the various logs, maintenance records, and the operator’s license or certification.

3. 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. If the testimony at the pre-trial hearing is different from that at the trial, the stronger your case is. And it is not uncommon for this to happen.

4. Not Personally Checking Out The Arrest Location

Many lawyers don’t visit the arrest location. And in some cases, this can be exceedingly crucial. One lawyer 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. This 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 court. An example: An officer may testify that you wove a certain number of times 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.

5. 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 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. 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 challenge the test as not being scientifically validated. Incidentally, the police commonly use tests that aren’t in the manual.

6. Not Explaining The Extra Penalties Coming With a Conviction or a Guilty Plea

Your lawyer must advise you about the administrative sanctions resulting from a conviction. 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). 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.

7. 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 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 judge’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 judge 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. Only good time to put the defendant on the stand is if attorney needs to contradict something the officer said, beyond that, your lawyer should stick to placing reasonable doubt in the judge’s mind.

8. Attempting to Show The Officer Lied

Your lawyer doesn’t need to make the officer sound like he lied to put reasonable doubt in the judge’s mind. All he really needs to do is show how the officer might simply be mistaken this time. No one wants to believe that the officer is lying. But the Court may accept the officer being mistaken. It’s far better to simply paint the case as being about a cop jumping to conclusions and making mistakes.

9. Not Consulting A Lawyer That Focuses His Practice On DWIs

Just as you wouldn’t hire a criminal attorney to advise on business law or divorce, you should consult with an attorney who handles DWI matters and is fully familiar with the process that goes with it. The reason for this is simple: DWI law is complex, it involves a lot of science, and a generalist cannot be everything to everybody. Knowing how to defend a DWI case involves considerable preparation, familiarity with the law, and knowing what motions to make and when. An attorney that concentrates in DWI 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’s practice is not totally focused on DWIs, you may not be getting the best advice and you may not have the strongest case. DWI is no longer a minor offense. The reforms of the 80's and 90's, the tightening of the standards defining what DWI 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.

10. Not Consulting with an Expert on the Testing Procedures

Whether it is a breath test or a blood sample, a serious mistake results when counsel does not consult with the proper experts that can assist in the defense of the case. If the police reports and testing reports are defective, expert testimony is required to prove your case. Consulting with the proper experts, and getting written opinions from those experts when necessary can help convince the Prosecutor that he or she cannot prove your case beyond a reasonable doubt.
10 Mistakes Lawyers Make In DWI Cases And How To Avoid ThemSocialTwist Tell-a-Friend

Driving While Intoxicated

Driving while intoxicated is the act of operating and/or driving a motor vehicle while under the influence of alcohol and/or drugs to the degree that mental and motor skills are impaired. It is illegal in all jurisdictions within the U.S. The specific criminal offense is usually called driving under the influence (of alcohol and/or other drugs, DUI), and in some states driving while intoxicated (DWI), operating while impaired (OWI), or operating a vehicle under the influence (OVI). Such laws may also apply to boating or piloting aircraft.

In the United States the National Highway Traffic Safety Administration (NHTSA) estimates that 17,941 people died in 2006 in "alcohol-related" collisions, representing 40 percent of total traffic deaths in the US. Over 500,000 people were injured in alcohol-related accidents in the US in 2003. NHTSA defines fatal collisions as "alcohol-related" if they believe the driver, a passenger, or an occupant of the vehicle (such as a pedestrian or pedalcyclist) had a blood alcohol content (BAC) of 0.01 or greater. NHTSA defines nonfatal collisions as "alcohol-related" if the accident report indicates evidence of alcohol present. NHTSA specifically notes that "alcohol-related" does not necessarily mean a driver or nonoccupant was tested for alcohol and that the term does not indicate a collision or fatality was caused by the presence of alcohol. On average, about 60 percent of the BAC values are missing or unknown. To analyze what they believe is the complete data, statisticians simulate BAC information. Drivers with a BAC of 0.10 are 6 to 12 times more likely to get into a fatal crash or injury then drivers with no alcohol.