The Top 10 Mistakes Lawyers Make in Drunk Driving Cases . . . And How To Avoid Them

      Even though all attorneys are "schooled" in a wide variety of legal areas, a huge amount of expertise comes from practical experience and exposure to particular areas of law. Many lawyers limit their practices to "criminal defense", but DWI is even more detailed than the average "criminal" case.

      For DWI cases, a whole lot more is involved. The complete practice of DWI defense involves knowledge of several areas of law: Penal Code, Criminal Procedure, Civil Procedure, Government Code, Traffic Code, Administrative Code, an the Rules of Appellate Procedure, just to mention the statutes involved.

      DWI also involves science. Many lawyers attend law school to avoid math and science. Vigorous defense involves appreciable knowledge in science and physiology as we are talking about the effects of alcohol on the human body.

      Many criminal defense attorneys consider DWI cases to be "just another misdemeanor case". This is simply not true. The best DWI attorneys know that they are quite complex, not only in the legal areas concerned, but also in their preparation, defense and presentation at trial.

      Because of this complexity, many attorneys make 10 big mistakes when it comes to defending DWI cases ... mistakes that can meaningfully harm their clients either immediately or in the future. You see, a DWI conviction can have serious ramifications: license suspension, deep lung ignition interlock devices, increased insurance rates, large fines, jail time, loss of professional license and even loss of employment.

      To protect yourself and help decide on the right attorney for your case and the best disposition for your case, you need to know what these mistakes are:

Mistake 1 - Assuming the Case Can't be Won

      I have been practicing criminal defense for over 23 years and began limiting my practice to DWI cases since 1997. Since limiting my practice to DWI cases, I have come to believe that assuming a case can't be won and pleading you guilty is the single most important mistake that attorneys make in representing people charged with DWI.

      You see, many attorneys simply give up and advise their client to plead guilty for probation after getting a breath test result at or above the legal limit and reviewing the police version of the incident,. And actually, if it is your first offense, you are probably going to get probation anyway. In fact, even if you take your case to trial, your punishment will not be increased and you will get probation.

      As a matter of fact, potentially the breath test, blood test and roadside tests can be wrong . . . resulting in incorrect conclusions. Police even have a lower standard to apply when making an arrest decision.

      For example, many things can effect a breath test which should be investigated and challenged. For example, recent scientific testing has shown that work conditions (such as volatile chemical exposure), extensive dental work, Gastro Esophageal Reflux Disorder (G.E.R.D.), air bag deployment and even a simple fever can yield a "false high" breath test result.

      Is it more costly to defend than to plead guilty?

      Sure it is. But with so much at stake and a permanent record of a conviction (all arrest and accusations can be erased if you win), the possibility of winning your case should be closely examined. And, in the long run, it may cost you less than you may think.

      And it's just not you costs that are involved in your case. Lawyers have to make a living too. There are only two ways for a criminal defense lawyer to make money: 1) handle as many cases as possible as quickly as possible (by simply pleading you out) for a low fee or 2) perform a quality defense for a reasonable fee. A thorough, professional defense requires time and knowledge. If its your reputation and livelihood that are at stake, which lawyer do you want?

Mistake 2 - Not Conducting a Full Client Interview

      Since being admitted to practice in 1986, I have been completely amazed at how many attorneys do not spend sufficient time in their attorney-client interview to get a full story from their clients. Most attorneys simply believe that "all DWIs are alike and they only need to know why you were stopped and how many drinks you had the night you were arrested. This is simply not true.

      My initial client consultation lasts about an hour. In that meeting I complete a 12 page interview questionnaire covering the time of stop, the officer's actions at initial contact, field coordination exercises, conditions where testing was conducted, transport to jail, videotaping of your arrest, details of your entire day before your arrest including meals eaten, medication taken, a full night's sleep and work conditions . . . just to mention some of what's covered.

      After all these facts are given to me, I then fully explain the two prosecutions involved in a DWI arrest, the license suspension and the criminal prosecution and ask you how these prosecutions will directly affect their lives.

      Plus, I then explain the various methods for complete resolution of your case and give a preliminary opinion as to which disposition may be most appropriate for you. I do not ever predict a final outcome in a preliminary interview because I believe such an opinion is "educated guesswork" and do not feel that you come to see me for my guesswork.

      If the attorney(s) you contact does not sit down and visit with you face to face, and spend some time with you, run, don€t walk out of their office!

      Note: I do not generally talk with new clients who call. My time is valuable and so is yours. If a person does not have enough time to come to my office and receive a free consultation, I do not have enough time to discuss their case.

Mistake 3 - Not Hiring and Training an Excellent Staff

      This is one of the most common mistakes made by criminal defense attorneys. Most attorneys try and keep their costs as low as possible and so do I. I do, however, have the most knowledgeable DWI staff in North Texas. A real criminal defense attorney should spend most of his time in court and not on the golf course.

      Because of the necessary time spent in court, you deserve a live contact person with whom they can discuss their concerns and answer their questions. Being arrested and accused of DWI can be an unnerving event and many times questions come up between court dates and after consultations. You should not have to leave voice mail or page me to get answers to your questions.

      Another benefit of a good staff is good work. My staff is trained to handle any procedural questions about DWI cases and license suspensions. They do not answer legal questions, but oftentimes can get the question to me and the answer back to you before I can return from court or trial. We have had many compliments on this service.

Mistake 4 - Not Reviewing the Video with you

      I am completely amazed at the number of clients who come to my office for a second or subsequent DWI arrest who have told me that they never saw the videotape of their first arrest. I have even learned that some attorneys practicing DWI defense do not even look at the video before advising their client to plead guilty!

      This is your case and you should be as fully informed as possible about all of the facts in your case. The video is a key factor in any DWI case and both you and the attorney should review it before making a decision to take a case to trial or plead guilty.

      Be sure that any attorney you hire for your case will allow you an opportunity to review your video with or without him. Not doing this simple act is malpractice for the attorney and stupidity for you.

Mistake 5 - Not Examining All of the Facts before Deciding on a Disposition

      Many attorneys tell clients that their DWI case is dependent on the video or if they took a breath test. In my opinion, this is simply not true. There are many other facts to consider to determine whether or not a case is winnable.

      There are three or four factors that must be considered as a whole before any attorney can give you any opinion of value about your case. Your attorney must consider your side of the story, the police version and the maintenance history of the breath test machine if a breath test was taken. All of these components together make up a DWI case.

      For example, I have had many cases with breath tests well over the legal limit of 0.080 (0.023) and have been successful at trial. A thorough examination of the machine maintenance records revealed that the machine was NOT WORKING the day this client was tested. His video also demonstrated that he could do every field sobriety exercise without making a single mistake.

      Another example is a bad video. I have represented clients with medical conditions or suffering from other ailments that prohibited them from performing balancing tests. Introduction of medical records and testimony from people who have known them have convinced juries that you were not affected by alcohol but that they just couldn't do these particular exercises.

      I have also had cases in which the police officer deviated from what was written in his police report on the night of the arrest or has a bad history. If a police officer is perceived as being deceptive and not fair in making an arrest or testifying in court, juries seldom reward their performance with a guilty conviction.

      In one case I was able to show that a particular officer had been reprimanded by Internal Affairs for conducting a "DWI arrest contest" with another officer to see who could make the most arrests in a particular month. The jury was not pleased with either participant in the contest.

      As you can see, I have won cases with bad videos, high breath tests and awful police reports. Why? Because it is how all of these parts fit together that matters in your case. There may be valid explanations for any one of these component parts and without a complete investigation of the facts, any prediction of results is a guess.

Mistake 6 - Not Considering All Penalties for Conviction

      Each client presents his or her own unique facts with their case. The individual must be wholly considered to render effective representation for you.

      In cases in which there are multiple offenses pending (DWI, DWLS, Probation Revocation, Marijuana charges, etc.), punishment is a critical issue to you. Although you may be able to win one or more of the charges, you may be convicted of others. In these types of cases, the attorney should look at all of the cases together.

      For example, the burden of proof for a probation revocation is much lower than for a conviction in a criminal case. Because you have already been found guilty and ordered to obey certain conditions, the State need only prove "more likely than not" that you violated any one of the probation conditions.

      Remember, you were granted probation because you promised to abide by the terms and conditions ordered by the judge. Just because you did not live up to your part of the bargain does not mean that the judge will not honor his promise to jail you if you violated his order.

      In multiple offense cases, the attorney should advise you on the effects of all types of dispositions in your case. Although it is not desired, a short jail sentence may be preferred over doing some jail time and continuing for an extra year on probation, subject to being jailed again in the future should you violate a condition again.

      Many attorneys do not fully explain the effect of having multiple cases pending at the same time and as a result, you suffer. If you have more than one case, be sure that your attorney understands this and explains all possibilities for resolution of all of your cases rather than only addressing one of them.

Mistake 7 - Not being familiar with Standardized Field Sobriety Testing

      Field Sobriety Testing are the exercises an officer has you do before deciding to place you under arrest for DWI. Although they look fairly simple, they are to be conducted, evaluated and scored in a standardized manner in order to be valid indicators of intoxication.

      Standardized Field Sobriety Tests (SFSTs) were developed by the National Highway Traffic and Safety Administration in a grant by the United States government. As such, an "official" training manual and trainer's manual has been published from the studies conducted under this grant. Every good DWI lawyer has these manuals.

      Armed with these manuals, a DWI attorney can demonstrate at trial why the results observed by the police officer and his conclusions should not be believed. If the officer did not follow his training, the manual itself states that the "validity has been compromised". This is powerful and compelling evidence at trial.

      In many cases the officer does not follow the manual or conducts his own field coordination exercises. If he states that he is trained and experienced, he is quite embarrassed when you point out that he has not been trained or certified according to the national standard. In fact, many of the individual officer's non-standardized tests were specifically found to be unreliable in this study.

      If this can be pointed out at trial or at the license suspension hearing, these tests are excluded from any consideration by the judge or jury!

      At the very least your attorney should be familiar with these manuals and have studied them carefully. They provide a wealth of resources for cross examination of a police officer at your trial. If unfamiliar with these studies and manuals, the attorney cannot effectively cross examine the arresting officer in your case.

      Because of the importance of these manuals and procedures, some attorneys are beginning to seek out and obtain training and certification in SFSTs themselves. If you review my resume you will find that I am certified to both conduct and teach this course to police officers. It has been an invaluable tool for serving my clients at trial and license suspension hearings.

      What's the point? It's simple. If your lawyer doesn't know the SFST€s, how can he or she attack the way the arresting officer conducted them in your case?

Mistake 8 - Not telling you the definition of Intoxication

      Everyone knows what drunk is, but few people know the legal definition of intoxication. Each state legislature has specifically defined "intoxication" or "impairment" or "under the influence" for their state's DWI laws. Although this may not be the definition that is commonly used, it is the definition in a DWI prosecution.

      Texas defines intoxication as follows: "Not having the normal use of your physical or mental faculties by reason of the introduction of alcohol, a controlled substance or drug, or a combination of two or more of these substances or any other substance into the body" or "having and alcohol concentration of 0.080 or more" at the time of driving.

      This law takes into account both regular and occasional drinkers. Although a person's breath test may be below the legal limit, they still may not have the "normal" use of their faculties. Under the law, this is intoxication.

      On the other hand, a person with an alcohol concentration at the time of driving of 0.080 or more that has the "normal" use of their faculties is also considered intoxicated. Therefore it is critical to examine the proof on all definitions of intoxications when advising a client on the disposition options and likelihood for success.

      An attorney who does not fully explain the law under which you are being prosecuted is not providing you with any service at all. Unless this definition is fully explained and understood, the lawyer should probably not be handling DWI cases.

Mistake 9 - Not being familiar with breath / blood testing

      This may sound unimportant if you refused a breath test, but even in refusal cases, knowledge of the absorption and elimination rates of alcohol in the human body can be powerful evidence in your case.

      If you took a breath or blood test, this knowledge is critical. Without a thorough understanding of the science and technology supporting chemical testing, your attorney is "unarmed" to defend against it.

      A good DWI lawyer attends advanced training seminars to learn as much as he or she can about chemical testing. Machines break down and make mistakes. Without knowing how they work or how they don't work, your attorney cannot defend against this evidence.

      For example, in breath testing many things besides alcohol can yield results. One example is a common chemical called "Toluene". This compound is found in most petrochemical products from gasoline to paint to furniture polish. Lengthy exposure to toluene can test positive as alcohol on the standard breath test machine (Intoxilyzer 5000, CMI). There is no filter in the machine to test whether or not this substance is affecting your test.

      To complicate matters, Toluene registers on a breath test machine at three times the actual concentration as it assumes that it is alcohol! There is a reported case in Georgia where a floor refinisher and a police officer were in a room for eight hours polishing wood floors and both tested at 0.10 without ever having anything to drink!

      There are also many other things that can affect a breath test result that are much more common. For example a diabetic will test positive for alcohol just because of the chemicals produced by the diabetes. Air bag deployment has also been shown to elevate a breath test score.

      Most recently it has been documented that persons on the "Atkins Diet" will also test positive for alcohol on a breath test machine without having anything to drink at all!

      Blood tests, although more reliable than breath tests, can also have problems and produce inaccurate results. Most blood tests in DWI cases are done at a hospital rather than a forensic laboratory.

      Hospitals have different procedures for analysis and reporting than do police labs. As a matter of fact, hospital blood tests are reported higher because many times they do not examine the "whole blood". They typically measure the alcohol in either the "plasma" or the "serum" of the blood which automatically yields a higher result.

      If your attorney is not familiar with blood testing, he may assume that you tested over the legal limit when in fact your results indicate that you are below the legal limit!

      I am also certified in blood and urine chemical analysis. I also have a pre-med scholastic background which greatly assists me in chemical testing cases. My certification educated me in all manners of chemical testing from gas chromatography to enzymatic analysis.

Mistake 10 - Not explaining and considering an expert in your case

      As you can probably already see, some of the issues presented in DWI cases involve complicated information. To present these at trial you must have a witness who is an expert in the area which you intend to explore.

      Not all cases need an expert, but when one is suggested, you need to know. Many attorneys do not want to use experts as they feel it makes them appear ignorant. Lawyers are experts in the law. Scientists are experts in science. It's that simple.

      Chemical testing issues can best be handled by qualified experts. Your attorney should be familiar with and have access to experts if suggested by the facts of your case. Not only should the expert be knowledgeable, they should also be good witnesses. Scientific issues can be difficult to explain and even harder to maintain the jurors' attention during trial.

      The big mistake lawyers make regarding experts, however, is they do not discuss experts at the beginning. Expert witness get paid for their appearances at trial and they are typically paid very well. Clients hate to be surprised the month or week before trial that they need to spend extra money for the best possible chance of winning their trial.

      The point? If an expert is needed for your trial, you should know as soon as possible. You should also be fully explained the costs and benefits of using an expert in your case.

Mistake 11 - Not being a trial attorney

      Trial attorneys are a special breed. Like surgeons, they may not have the best bedside manner, but they consistently win their cases.

      You should not hesitate to ask your lawyer how many DWI cases he has tried and won. A good trial attorney will brag about his wins and honestly discuss his losses. Criminal cases are not easily won and no one wins all of them. Anyone who tells you that they do is not telling you the truth.

      How do you know if you hired a trial attorney? The best place to start is at the courthouse or by asking other lawyers. Trial lawyers are well known at the courthouse. Although court personnel cannot recommend an attorney to you, they can tell you whether or not an attorney goes to trial regularly.

      Also, other attorneys should be asked. Trial lawyers are well known if not infamous in their geographical areas. Good trial lawyers openly share their cases with other attorneys and many teach at lawyer seminars.

      If you want to win, you need a trial lawyer. Any lawyer can plead you guilty. If you want to fight your case and have any chance at winning, these are two questions you must ask your prospective lawyer, "How many DWI cases have you done?" and "How many do you win?" No trial attorney I know will hesitate to answer both questions.

© 2002 Chris Hoover