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FAQs About DUI Defense

Q: Is Hiring A DUI Lawyer Really Worth It?.

A: Hiring a DUI lawyer is about the most essential decision that you’re going to make once you’ve been charged with DUI. You’re dealing with the allegations that the prosecution made based on technology and then a machine and also on expert testimony of a police officer evaluating whether you are intoxicated or not based on your performance of standardized field sobriety tests. An individual is not equipped to determine what defenses they are able to make out and by having an attorney involved in the process. Attorneys are able to obtain discovery, provide you with access to your own experts, and also evaluate the experts that the state is going to put forth as well as the technology available.

A DUI attorney also will be familiar with the prosecutor and will have a frame of reference as to what is the most effective way to negotiate with that prosecutor. Someone who is trying to handle a negotiation themselves may have the right strategy but do it in such a way that alienates the prosecutor and the judge. There are also court-ordered timelines in which this work needs to be accomplished and the attorneys that you’re working with and working around.

Q: Why Do Judges Think that Defending Yourself in a DUI case is Ill-Advised?.

A: From a judge’s perspective, it is not only ill-advised for the defendant; it’s ill-advised for the judge. By being unrepresented in a DUI case, you are opening the court up to a claim that you have ineffective assistance of counsel. That’s based on the fact that you’re essentially being prosecuted by a machine, and knowing how the machine operates, how to detect issues of unreliability, and having access to the experts who know how to effectuate an evaluation of the machine is essential. It’s also essential to have the experience of evaluating the standardized field sobriety tests. Many attorneys like myself have gone through the same expert qualifying testing that a police officer has. When you go down the road as a pro se litigant, you don’t know the rules, you don’t know what is going to make your case sellable to the prosecutor and the judge, and you may have the inability to obtain experts, to figure out how to obtain the discovery and figure out how to present your defenses to the judge and to the prosecutor.

Some defenses involve things you’d never imagine, such as having an Invisalign brace in your mouth which can trap alcohol. There is also the fact that more and more these days we’re dealing with blood warrants and if you don’t know how to fight the warrant in a legally permissible manner, you’re going to be greatly harming your case.

Q: Why Can’t Public Defenders Spend a Lot of Time on Your DUI Case?.

A: I spoke to a public defender earlier this week who told me that in his five years in that particular court, he has never taken a case to trial. I don’t believe that is a reflection on the quality of the evidence or the quality of the prosecutor, I believe it is a reflection on the fact that public defenders have so many cases that, by necessity, they have got to resolve a case quickly and they are not looking to try the case, they are looking to resolve through a guilty plea. There is also a psychological reflection on the defendant that when they opt to hire a public defender, they have made a decision in their mind that they are not seriously contesting the charges, and as a result, they are not going to be putting themselves in the mind frame to ask the right questions. It’s basically the equivalent of psychologically giving up.

Q: To Blow or Not to Blow, that is the DUI Question?.

A: There is no question about it. You must blow. If you fail to blow, you will be charged with a refusal.
A refusal is an equivalent of getting a second DWI. So, if your idea of avoiding a problem is making it twice as bad and reducing your ability to defend your case, then that’s what you do but I would always recommend that defendants take the chemical breath test because if they don’t, they are in violation of the law and they will be charged with a refusal.

Q: What if You Fail the Roadside Sobriety Tests?.

A: There is no such thing as failing the roadside sobriety tests. The tests are developed by the National Institute of Traffic and Safety Administration to provide clues to assist an officer in assessing whether a person has probable cause to submit to a chemical breath test. When an officer determines that there are reasons why you should take the chemical breath test, this does not automatically mean that you have lost the case. In fact, by having an attorney who can vigorously evaluate the video and other evidence and cross-examine the officer on field sobriety testing, you can actually win the case at that stage.

Q: “Say the Alphabet Backwards.” What Should You Do When the Police Ask You to do This?.

A: Any of the alphabet tests are non-standardized sobriety tests, meaning that there is no scientific reliability to the test. I would advise people that they should decline to take the non-standardized field sobriety tests. In fact, I’d advise someone that they should refuse to take the standardized field sobriety tests as well. You’re only producing evidence that can assist the police in prosecuting you. At the end of the day, chances are very good that the police are going to find probable cause to give you a chemical breath test if the officer has smelled alcohol in your breath. So, all you’re doing is creating evidence that can be used against you if your attorney is able to suppress that breath test, which is often something that the attorney is able to accomplish.

Q: “But I Only Had Two Beers.” How to Fight a DUI When You’ve Said This?.

A: When you’ve made an admission of having ingested alcohol and the officer had smelled alcohol on your breath, you are providing the officer essentially with information that can lead to a further investigation. There are some people out there who suggest you shouldn’t say anything to the officer and that may be something which is permissible for you to do in your state; it will lead to further suspicion by the officer, however. The best way for you to win a case when you’ve said, “I’ve had two beers” is to cooperate with the officer, assist in the creation of as much evidence as possible, and take the field sobriety tests so that your attorney can later look to suppress the chemical breath test. You should always have an independent blood analysis done after you’re arrested for DWI to compare with the chemical breath test.

Q: “Not Guilty.” “Case Dismissed.” How Can You Hear this on Your DUI Case?.

A: The best way to have your case dismissed is to hire a qualified DWI attorney, someone who focuses the majority of their work on DWI cases. One way to look for this is to look for someone who is a member of the National College of DUI Defense.

Q: Top Mistakes that Would Jeopardize your DUI Case..

A: Not taking the field sobriety test is a very serious mistake that can have lasting repercussions. Another mistake is not immediately retaining experienced counsel as the failure to quickly obtain evidence can result in that evidence disappearing and not being available for trial. Always hire a lawyer on a DUI case as soon as possible.

Q: What Makes a DUI Case Different from a Standard Criminal Case or a Traffic Case?.

A: First of all, there are no plea bargains in a DUI case. The case has to be fought and fought aggressively. The case is based on technical and scientific evidence which only an expert and an attorney who is trained in evaluating that evidence can interpret. It’s also based on knowing the manners in which a field sobriety examination needs to be conducted.

Q: What are some Things that People Don’t Know that Might Help their DUI Case?.

A: There are so many changes in the law going on right now, it would be impossible to list everything. Some of the items which are going to affect the reliability of a prosecutor are whether you had knee, hip, or back injuries that would have prevented you from taking the Alco- test. Whether you were read your standard statement in your native language and whether you had any foreign objects in your mouth such as a tongue ring or a removable brace; all of these items, if present, can diminish the ability of the state to prosecute your case reliably.

Q: What About Retainers?.

A: Any foreign object that’s in your mouth has the potential to retain alcohol and if the police don’t follow the proper procedures, which they usually don’t, then that’s going to affect the admissibility of the test.

Q: What are three of the Biggest Myths in DUI cases?.

A: First, that you don’t have to blow on the chemical breath test. Second, that when an officer determines that you failed the field sobriety test that the case is over – it’s not.

Third, that there is no way to beat the machine – there are over 28 ways that you can use scientific evidence to defeat the chemical breath test.

Q: DUIs and Prescriptions Medication; Are the Penalties the Same?.

A: Yes. It is a question of whether you’re intoxicated. It doesn’t matter whether you had a right to be intoxicated or not. It’s perfectly legal to drink alcohol, it’s not legal to get behind the wheel of the car when you’ve become intoxicated. The same goes for any other legal drug that you possess.

Q: Why Do People Fail the Field Sobriety Tests all the Time?.

A: I wouldn’t say that they fail the tests. They don’t realize how low the standard for field sobriety is. If the officer has an admission of drinking, they are going to bring you in, they are not going to let you go back out there with your car. The officers are not just looking for a physical manifestation, they are also looking to see how well you listen to directions. The tests are essentially designed for people to fail.

Q: Why is Hiring an Attorney Even More Important the Second Time Around?.

A: When you’re facing a second or third DUI, you’re not just facing a loss of your license, you’re facing a loss of your liberty. On a third offense or more, you’re facing a minimum of six months incarceration in state prison.

Q: Can a Blood Case Really Be Fought?.

A: Absolutely! The first instance is whether or not the warrant has been properly obtained. The second instance is whether the blood has been drawn properly and tested properly. State police labs these days are overburdened with requests to test blood and other evidence. As a result, it can take so long for those results to come back that the judge has to dismiss the case. Attorneys who are experienced with defending blood cases can also request evidence that would weaken the case and which the state may not be prepared to respond to. We don’t know the evidence that we mean to get simply because we are geniuses, we know it because we consult with experts in the field and we are constantly training at symposiums throughout the country.

Q: Why Should You Not Ignore the DMV?.

A: If you do not follow the guidelines and the requirements that the Motor Vehicle Commission puts on you, the timeline for your license suspension is not going to work. Furthermore, if you’ve done nothing wrong and you simply don’t comply with the DMV instructions, you can have your license suspended just for that even if you haven’t been charged with DUI.

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