DUI From the Perspective of an Attorney

by attorneyscottcampbell

DUI From the Perspective of an Attorney. One of the most common questions I get when first meeting a potential DUI client is “do I need a lawyer for this?” Yes. You need a lawyer. In fact, if you can’t afford your own, the Court will give you a public defender. They have to because jail is mandatory for even the lowest DUI offense.

So why not just use a public defender? The short answer is choice. You have none when you are assigned a public defender. Some are very good, very concerned, and very experienced. Some are not as good, not as concerned, and not as experienced. If you can afford you own lawyer, hire one. You should expect them to be attentive to your case, explain what is happening as the case goes on, and know what he is doing. Don’t use a lawyer just because he did estate planning for your dad. He may know nothing about DUI law. And, to be fair, don’t come to me for estate planning.

DUI From the Perspective of an Attorney

So what am I looking at when you tell me what happened and as I go through the police report? First, I don’t care if you are guilty or not. If your blood alcohol level was too low or if you did not have drugs in your system, you would not have been charged by the prosecutor. You have a problem and I’m trying to get you out of it as clean as I can. I am looking at you encounter with the police in separate parts.

First, I’m looking at whether the police had enough to stop you. This standard is very low; all they need is “reasonable suspicion” that you committed a traffic violation or crime. They don’t have to be right, they just have to have a suspicion based on a sufficient reason, not just a hunch. This one is tough to win, but in some cases it is possible.

Next, before the police can require you to take roadside tests (these are the eye and balance tests), they have to have reasonable suspicion that you are impaired. Again, it is a low standard, but one they have to meet.

DUI From the Perspective of an Attorney

Then, based on how the police said you did on the roadside tests (remember, they are designed for you to fail), was there enough information to arrest you? Teaser – this is important in my next blog post. The police need probable cause to arrest you. That is more proof than reasonable suspicion, but again you don’t have to be guilty to get arrested.

Next, were the breath or blood tests done correctly? I do look carefully at these, but they are the hardest part of the case to attack. The breath test is automated with many checks, and the blood is analyzed by crime labs that try to be very accurate.

Finally, I look at whether your case has “jury appeal.” There are instances where something will play well to a jury and, even if you are technically guilty, could result in a not guilty verdict.

That’s a lot, but not all. DUI cases have many parts, not the least in including the implications on your driver license and insurance. Whatever we decide to do, all aspects of the case need to be considered.

DUI From the Perspective of an Attorney

To be basic, most parts of a DUI case are handled between your attorney and the prosecutor. Assuming you have hired an attorney experienced in DUI law; both he and the prosecutor know the ins and outs of how the law applies to your case. If I can’t get a prosecutor to see things my way (and often they are not allowed to do things they personally think would be right – they have a boss too), I look to filing a pretrial motion to be heard by a judge.

There are a number of reasons to file motions. Maybe I think I can win, maybe I think the prosecutor just won’t want to fight it, and maybe there is another reason. In the big picture, this pretrial stage is where most cases are finalized. If you are actually guilty and I can get an agreement to charge less than a DUI, I have usually saved you more money than it would have cost you in the long run.

Finally, maybe it is one of the few cases that actually go to trial. Unless everyone agrees, you get a jury trial. It will only last 1 or 2 days, and a jury is 6 people who would rather not be there and don’t care about you personally. It is cold. The police officer will most likely be a trained, rehearsed, and polished witness. The lab person will be educated, rehearsed, and very convincing.

If there is an issue with the scientific evidence, there are former lab people who have a business testifying to what may be amiss – they are actually real good, though they will agree with the police lab people if the evidence is correct. Then there is you if you testify. If the facts are lined up against you, the “but I’m a nice person” defense doesn’t work. Trust your lawyer. If he thinks you will lose, you will probably lose. If he says you will lose and there is some deal less than a DUI conviction offered, take it. Personally, I don’t give up without a fight, but I have to consider when it is best to settle a case.

DUI From the Perspective of an Attorney

So…what should you do if you are stopped and you may be impaired? Here is my advice, though I have talked to other lawyers who give somewhat different advice at certain points. First, stay calm and shut up. Give the officer what he asks for – license, registration, whatever – and shut up. If he tells you to get out of the car, get out and stand where he tells you to, and shut up. If he asks to check your eyes, say nothing. Don’t do it. Don’t give him ammunition to arrest you with. If he asks you to do some balance tests, say nothing. Don’t do them.

If he arrests you, do exactly what he says, and shut up. When they ask you to do a breath or blood test do it. I know this sounds odd, but the punishment for refusing is worse than the punishment for failing, and they will just get a warrant to take your blood anyway. Oh, and shut up. If they read you your right (you know…you have the right to remain silent, etc.) and ask if you will answer questions, shake your head no. And shut up. Did I mention shut up? I’ve never got in trouble for something I didn’t say.

The goal in all this is to give the police as little evidence as you can that may be used against you. It gives me the best chance to get the best outcome for you.

Next installment will be a first-hand experience of being arrested for DUI when I wasn’t. Next in this series : DUI From the Perspective of a Driver.

If you have been charged with DUI in Tempe or anywhere in the Phoenix area; contact me for a free consultation to discuss your legal rights.

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DUI From the Perspective of an Attorney

480-745-5677

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