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HOW TO WIN A DRUNK DRIVING CASE: Copyright 2000, 2001,2006
Online Case Evaluation TABLE OF CONTENTS INTRODUCTION
INTRODUCTION For the last twenty-six years, I have been privileged to practice criminal law. During that period of time I have worked hard to gain a good reputation, and the respect of prosecutors judges and other lawyers. I have received honors and accolades. I’ve won a lot of cases... a lot of drunk driving cases.
In this little primer I’ll show you my winning strategies You will need a lawyer, and this book will help you to choose one. Finally, this book contains no technical information on drunk driving law or chemical test technology. Drunk driving law and procedure is different in every state. The law and technology of drunk driving prosecution, like everything else around us, is changing very rapidly. This book is an aid to obtaining and understanding good legal advice, but any specific questions must be directed to your lawyer. This little book contains general principles of analysis and defense of the drunk driving case, for the layperson. I hope that you will find it beneficial. Feel free to visit my website and contact me for more information, or an online case evaluation. And, please don't drink and drive. Andrew Mishlove, Esq.
Glendale, Wisconsin PRISONS AND CHECKPOINTS: WHAT PRICE SAFETY IN A FREE SOCIETY? America is a land of extreme contradictions: rich and poor, the freest with the most prisoners, and the most committed to liberty with some of the most repressive attitudes. We certainly live in a very dangerous society. Handguns are one of the leading causes of death among young men. People are afraid, and politicians prey on that fear. Legislation has been proposed in my state to legalize police highway checkpoints, already legal in forty states (a U.S. Supreme Court decision on this is pending at the time of this writing). HIGHWAY CHECKPOINTS!! Politicians always look for easy answers; but, they are often unwilling to make hard decisions to protect us. There is no question but that one of the great sources of danger in our society is the automobile. More Americans are killed each year in car accidents than Americans died in the War in Vietnam. Most fatal accidents involve alcohol. But despite the vast war on drunken drivers, highway safety has not been dramatically improved. Politicians will always take the easy steps of increasing penalties and restricting individual liberty, rather than taking the hard steps of limiting the proliferation and legal immunity of taverns, and funding rehabilitative programs. The society that glorifies alcohol finds it easiest to deal with the damage by imprisoning the drinker. If the present rate of increase continues, within this century the majority of the population of the USA will be in prison. When the constitutional liberty of a single one of us is trampled in the name of public safety, we all suffer from a loss of freedom. I do not support drinking and driving. It is a reprehensible evil, just as is murder. But I object to the suspension of human rights that has occurred in the name of the unsuccessful war on driving while intoxicated. In my state, which is festooned with saloons, a simple dram shop law (requiring tavern keepers to accept their responsibility for pushing alcohol on their drunken patrons) would do more than all the jail cells and highway checkpoints combined. But the legislature lacks the spine to stand up to the special interests. This little handbook on drunk driving is, therefore, intended
to be one man’s statement in support of the right to be left alone, to be free
of unreasonable searches, to a presumption of innocence, to a fair trial, a fair
verdict and, yes, if you deserve it, a fair punishment. GET HELP! If you’ve been arrested for drunk driving, especially if it’s happened more than once, it probably means that you had an alcoholic beverage and then drove a car. That is a terrible error in judgment. Whether or not you believe that you need it, GET HELP!! I’m insisting on this even if you are innocent of drunken driving. I don’t care if you were stone cold sober, its stupid and dangerous to drink and drive. It shows a lack of knowledge and a lack of judgment. You could kill or maim yourself or do the same to someone’s son, daughter, mother or father. Stop and consider the consequences of a drunk driving arrest, which is inconvenient and expensive even if you win the case. Then, consider the price of a taxicab. It’s a no-brainer. If God wanted you to drink and drive he wouldn’t have invented the taxicab. You also need to take an honest look in the mirror and ask yourself whether you have a drinking problem. Whether or not you have a drinking problem, you need to get help with your understanding of the problem of alcoholism. Go to A.A. meetings. You may or may not be an alcoholic, but everyone can benefit from the advice and insights available at a twelve-step group. So, even if you don’t believe that you need it, get help!
Use this challenge as an opportunity to improve your life. HOW TO CHOOSE A LAWYER If you’ve been arrested for drunk driving, don’t even think about proceeding without a lawyer. A person who represents himself or herself in court has a fool for a client. IF YOU'RE FACING JAIL, YOU NEED A LAWYER, EVEN IF YOU'RE GUILTY
CHOOSE A LAWYER EXPERIENCED IN FIGHTING OWI DUI CASES There are various different kinds of lawyers out there, and you will need to know how to choose. In general, you will find the following:
Avoid the discount lawyer. You will get only what you pay for, and that won’t be much. Discount lawyers make their money by a handling high volume of cases or by maintaining unreasonably low office overhead (no secretary, etc). These lawyers are not skilled in analyzing and defending cases. Rather, they are skilled in quickly disposing of cases by guilty plea, to maintain their profit margin. Be skeptical of any lawyer who charges a retainer less than $1500.00 on a first offense, and $2000.00 on a second offense. Avoid the general practitioner, that is, the lawyer who does some criminal work but also handles real estate, probate, divorce, wills, etc. Such a lawyer may be reasonably priced (with fees in the $1500-$2000 range), but will lack the specialized knowledge and skill necessary to defend a drunk driving case. This may be true even if the lawyer handles a significant number of drunk driving cases. Most likely, few of these cases are fought rather than plea-bargained. Further, a lawyer who has a reputation as a fighter tends to be able to negotiate the better plea bargains, when necessary. You are far better off with a public defender (if you qualify for such representation) than a discount lawyer or a general practitioner. Although public defenders are often overworked, they are skilled and dedicated specialists. Be very cautious if you wish to hire the most pre-eminent criminal defense lawyer you can find. It is true that with a little research, you will be able to find the Johnny Cochran, F. Lee Bailey or Barry Scheck of your city. If you live in a smaller community, which does not support criminal defense specialists, it makes sense to go to the nearest large city. Expect these kinds of lawyers to charges retainers in the range of $10,000.00 and up, with substantial additional fees for trial, and more if it is for a repeat offense with a substantially enhanced penalty. Be aware, however, that some of the more famous criminal lawyers may not be experienced in drunk driving cases, as these are seen as too minor. So, make sure that you get a lawyer who understands the intricacies of a drunk driving case. Drunk driving defense is now recognized as a separate specialty from general criminal defense. The American Bar Association has accreditred the National College For DUI Defense (www.NCDD.com) as the organization that may Board Certify specialists in this field. In Wisconsin, only an attorney that is certified by an ABA accredited board may lawfully call himself a specialist. If you are planning to fight your case, always choose a lawyer that is active in the NCDD and, if you are able, choose a board certified NCDD specialist. NCDD specialists will generally charge retainer fees in the area of $6500. to $10,000. depending on the case, with much higher fees for felony cases. Choose a lawyer with extensive experience in fighting OWI DUI cases at jury trial. Be careful, because we have seen ex-prosecutors claim to have extensive OWI DUI jury trial experience, which was almost all as a prosecutor (a fact that they will neglect to mention). Make sure that the lawyer is experienced in defending these cases at jury trial. Always avoid the low-priced, high volume lawyer. GET THE BEST LAWYER THAT
YOU CAN AFFORD, An example of an eminent OWI DUI specialist is California attorney Lawrence Taylor, who literally wrote the book on drunk driving defense. His website www.duicentral.com is a valuable resource. You should also check the national websites: www.1800DUIlaws.com as well as www.NCDD.com . If you can’t afford a qualified lawyer, a public defender is a far better choice than a discount lawyer or a general practitioner. You should be able to schedule a free initial consultation,
where the lawyer should spend between one-half hour and one hour with you
discussing your case. The discussion should include a recitation by you
and brief analysis by the lawyer of the following issues (although not
necessarily stated in this order or format): Or you may start with the kind of
online case evaluation offered at my
website. THE SIX KEY FACTORS IN A DRUNK DRIVING CASE Most people, including some lawyers who should know better, believe that if you are stopped for drunk driving and fail a breath or blood test, that you don’t have a chance to win. Certainly, drunk driving cases are difficult to win. In my twenty-six years as a trial lawyer I have fought and won many of them (and lost a few, too), including cases with very high blood or breath test results. Winning a drunk driving case requires a careful investigation of all of the facts, not just the facts that the police have reported. In order to analyze a case, I have developed what I call The Six Key Factors in a drunk driving case. These are the factors that I consider in fighting a drunk driving case. These factors cover the actual facts, not just the facts in the police reports. When a policeman makes a drunk driving (or any) arrest, he is required to fill out various reports detailing his observations. In drunk driving cases these forms may be fill-in-the-blank, or they may be in the form of a narrative. In almost all cases, the officers focus a few facts and ignore the rest. For example, they may note that you stumbled in the “heel-to-toe” test, but they will fail to mention that you had no other difficulties in your balance. So, winning a drunk driving case requires a careful review of The Six Factors. A good lawyer does not
merely review the police reports in order to analyze the case. A good lawyer
investigates and knows that what is in the reports and what might be said in the
courtroom are two very different things. Factor One: Did The Police Follow The Rules? Whether or not you are guilty may be one of the least important factors in your case. That's because of the exclusionary rule, a rule of law designed to protect the most important and precious of our civil liberties: the right to be free from unreasonable stops, seizure, search and arrest. In a free society the police must operate under strict rules that prevent them from stopping and arresting you without a proper legal basis. Too often, the police act on a mere hunch or suspicion, without adequate evidence. When that happens, the evidence they get as a result of their unlawful behavior may not be used in court, even if it shows that you are guilty. So, the first thing a good lawyer will do is a careful analysis of all of the facts that went into the police officer's decision to stop, question, test and arrest you. A good lawyer will always take any opportunity to challenge the legality of the police decision to pull you over, make you do field sobriety tests, arrest you or make you take a chemical test. Do not assume that just because you "flunked" a breath test, that the test result can be used against you; because, a good lawyer may be able to keep it out. The federal government has established a set of drunk driving investigation procedures called "National Highway Traffic Safety Administration Standardized Field Sobriety Testing." Many, but not all police officers are trained in this procedure. This requires a three day course, with proficiency testing. A good OWI DUI defense lawyer will be certified in standardized field sobriety testing. In this way, he will be best able to pick apart the manner in which your case was investigated by the police. Factor Two: The Story of Your Day Obviously, whether or not you are intoxicated depends on whether or not you have consumed an excessive amount of alcohol. Therefore, the story of your day is very important, because it includes your alcohol consumption. The details are important because the truth often lies in the smallest fact. What did you eat? Where did you go? Where were you coming from? Who were you with? And yes, what did you have to drink? This information is necessary to determine whether you were intoxicated, whether there are witnesses to support you or whether the chemical test result may be flawed. For example, I once had a client who was arrested coming from his wife’s wake. He had crossed the centerline slightly while driving on a curve in a two-lane country road, and was stopped. The police report contained the usual recitations: bloodshot eyes, slurred speech, poor balance, etc. The story of my client’s day became critical. He had been to the cemetery, and then to a memorial reception for his late wife. He had eaten and drunk wine at the reception with his friends and relatives. These people were available to testify that at no time did he appear to be intoxicated during the entire day and evening. They were able to corroborate his moderate alcohol consumption, food intake and sobriety. My client not only became credible, but he became human and sympathetic. Too often, decent people are portrayed in the courtroom as anti-social monsters, and a humanizing touch can be very helpful to level the playing field. Obviously, if you were at a drunken biker’s party, you may not want to advertise those facts. But, even if you were socializing at a tavern, the people you were with, including the bartender, can be important witnesses. Chemical tests of breath and blood can be flawed and unreliable. So if possible, it is important to locate any credible witnesses to document your actual alcohol consumption. Be aware that this may be possible using charge card records, as well. Likewise, alcohol hits harder on an empty stomach. So
if possible, it is important to document what you had to eat. Factor Three: The Driving. Police will usually try to report in detail on the driving violations that led to the initial stop of your vehicle. The prosecutor will argue that these violations are evidence of the impaired judgment and coordination of intoxication. Of course, that it often not the case. The police will often stop cars for slight or invalid cause. Why were you stopped? What was it about your driving or car that drew the attention of the police? Was it a burnt out license plate light? Was it speeding, three miles per hour over the limit? Was it swerving and severe unsafe lane deviations? Was there an accident? Many times, people are arrested for drunk driving, when the initial stop was due to some factor unrelated to alcohol consumption. Often times a stop occurs on some pretext, which has nothing to do with impaired driving. Unfortunately, it is undeniably true that racial minorities are stopped far more often on such pretexts (Emerge magazine has called this “DWB,” or driving while black). It can also be said that an old rusty car is a far more likely target of an unreasonable stop (this might be called “DWB,” or driving while broke). Some driving may, at first blush, appear to be erratic, when in fact it is not. For example, police like to stop people for “weaving within the lane.” What does that mean? As long as you stay in your lane, you are not weaving, right? Another, similar pretext is for an unduly wide exit to a turn. In many situations, however, a wide exit from a turn is the only proper or safe maneuver, even if it crosses traffic lanes. Every person who drives a car knows that most people drive about five miles per hour over the speed limit. Low level speeding, or a similar traffic violation, may give the police the right to stop you, but it is definitely not evidence of intoxication. Similarly, if you were in an accident, was it your fault?
It is critical to show that whatever driving errors you made were not the result
of alcohol-related impairment. Factor Four: Your Behavior Observation, and the lack of observation, of your behavior are crucial. This includes your behavior from the moment you are stopped and first observed by the police, to the moment when the observations stop, usually when you leave the police station. Police are trained to observe. Yet in most drunk driving cases, their observations are limited to your driving and the field sobriety tests. To properly analyze a drunk driving case, all of your behavior should be considered, from the first moment you were stopped. The field sobriety tests, to put it bluntly, are unfair. A very high percentage of stone-cold sober people cannot successfully perform the field sobriety tests. Many trained police officers, when asked to demonstrate the tests in front of a jury, will fail (or cheat, e.g. keep their eyes open on the finger-to-nose test). Jurors who attempt to do these tests during deliberation will often fail. So, it is important to consider all of your behavior, not just you field sobriety tests. I will mention the most common field sobriety tests, but only in passing. These are the one leg stand, walk-the-line, finger-to-nose and alphabet tests (there are other, less common tests, such as horizontal gaze nystagmus). The United States Department of Transportation publishes various manuals on how these tests should be performed, as do many state and local police departments. Nevertheless, it is common for the police to depart from proper test format, or to grade on irrelevant factors. For example, a subject will be told to recite the alphabet clearly, with no mention made of speed of recitation, but will be marked as failing if the recitation is slow. Another example would be to fail a subject who sways when performing the finger-to-nose test, even though the fingertip is touched correctly to the nose. These tests are usually performed under the worst of circumstances: in poor lighting, uneven pavement, poor weather, in improper clothing, etc. Further, a subject may be arrested for failing a single field sobriety test, after having passed a series of previous tests. A skilled lawyer will be able to show the unfairness of the field sobriety tests and direct the jury’s attention to all of the defendant’s behavior consistent with sobriety. The other standard observations that are made in virtually all drunk driving cases are bloodshot eyes, slurred speech and odor of alcohol. Again, a skilled lawyer understands how to show a jury that these observations are often fabricated, exaggerated, inconclusive and taken out of context. Bloodshot eyes, for example, may be due to contact lenses, cigarette fumes, fatigue or may be the subject’s normal appearance. The police have usually no prior experience with a subject or a subject’s voice, so the subject’s normal tone or accent (especially in the Milwaukee or Chicago area) may sound slurred. Similarly, the odor of alcohol may indicate recent alcohol consumption, but cannot indicate the amount consumed. It is necessary to show the jury the entire picture of your behavior, not just the police observations which are taken out of context. Did you pull over promptly, safely and in a controlled manner when the police activated their lights and siren? Were you able to produce your driver’s license without fumbling? Were you able to get out of your car without difficulty? Were you able to walk to the area where the field sobriety tests were performed without difficulty? What were the weather and lighting conditions? What were you wearing? What was the state of the pavement? Were you able to communicate your name, etc. to the officer without stumbling on your words? Were you able to get in and out of the squad car without difficulty? Were you able to walk into the police station without stumbling? Most of the time, police reports are silent on all
observations except for the field sobriety tests. Since police are trained
to write all relevant facts in their reports, their credibility will be subject
to devastating challenge if they add facts to their testimony, which is not in
their reports. So, if the reports are silent, it is safe to say that none
of your behavior except for the (unfair) field sobriety tests evidenced any
intoxication. Factor Five: The Chemical Test This little primer is not intended to be a manual of how to handle a drunk driving case, much less a manual on the technology and pitfalls of breath and blood tests. The technology has improved dramatically in the last few years. But like all technology, it is only as good as the people who operate it. There are three main types of breath tests in operation in the USA: The Breathalyzer, The Intoxilyzer and The Intoximeter. The most famous of the three, the Breathalyzer, is largely obsolete. Most police departments use the latter two machines. These machines are subject to error if not properly operated. One of the most common errors is mouth alcohol contamination (sometimes called belch contamination, giving rise to the term, “belch defense”). These machines are designed to test the air in a subject’s lungs. However, before the air can be tested, it must pass through the subject’s mouth. And who knows what is in the subject’s mouth? If the subject belched before the test, which can be a silent process, the mouth may contain relatively undiluted alcohol from the stomach. Hence the breath sample will be contaminated and the machine will give a false high reading. These machines are designed to detect mouth alcohol contamination: but the detection devices are fallible, and the manufacturers warn police to not rely on the machine to detect mouth alcohol contamination. Rather, the police are supposed to perform a twenty-minute observation of the subject prior to the test, to certify that the subject did not smoke, drink, belch, etc. prior to the test. Needless to say, these observations periods are often very lax, if they occur at all. A skilled attorney can often demonstrate the failure of the police to perform a proper observation period, by making the police testify as to the exact timing all the completion of their various tasks, including the police reports, setting up the breath test machine, communications with other officers, etc. That is just one example of the many different kinds of
errors to which breath, blood and urine testing are subject. The important
thing is to realize that these tests are flawed and fallible. If you
believe you were sober, but failed the test, there is a strong possibility that
the test was false. Detailed analysis and study of the testing process are
a necessity in each individual case. Factor Six: You. Your lawyer, more than any other skill that he must have, needs to be able to show the jury, the prosecutor and the judge that you are a decent, productive, likeable human being. Since you’ve been charges with drunk driving, you must be an antisocial, sloppy, mean, nasty drunkard, right? That’s what the prosecution wants the jury to believe. And, from a practical point of view, that’s what they will believe unless you negate that impression by showing them that you are a nice, decent person. You must let them know that you are not a monster, you are a human being. For the most part, we choose the image that we convey to the world. Our clothes, hairstyle, speech patterns, gait, etc., reveal the choices we have made in cultural identification. We may be artistic individualists, and choose to appear that way, with tattoos, body piercing, iconoclastic hairstyles, etc. There is certainly nothing wrong with this; but we must be aware that the jury who will judge us will also judge the message we convey by our appearance. Whatever out path in life, our appearance will convey a message. But, in a court case, it is important that the positive aspects of that message be emphasized. It doesn't matter whether you dig ditches, play hard rock music, sell computers or do brain surgery, you have an important positive creative, productive life. You have family that relies on you and needs you. You give of yourself to society and your family. Your lawyer needs to be able to communicate these things in court. How? This is done with your appearance, your posture, and every aspect of the way that your lawyer treats you, relates to you and speaks to you in court. It is also done by the story of your life that your lawyer converys on your behalf. This is why the TALENT of your lawyer is so important, and why some lawyers are winners and other lawyers are not. If the jury likes you, they will give you the benefit of the doubt; but if the jury dislikes you, they will simply find you guilty. Juries are intelligent; they have a way of being able to smell deception. I’m not saying that you should flimflam them with a false image-you don't need a false image. The real you must shine through. Remember my client, the nice hardworking guy, coming from his wife’s wake? The jury gave him the benefit of the doubt. Another example of a great client was the only woman in our state to own an automobile body shop. She was a no smooth and slick type of lady; she was just a working-class woman who had made herself a success in a man’s world by her simple hard work. The jury believed her even though she had a breath test result of .17 (which was explained by organic solvent contamination of her blood through long-term exposure to industrial chemicals and paint; and, there was also a police videotape showing her sober demeanor). One more example is the pretty young wife well into her eighth month of pregnancy. Or, one last example is the eighty-three year retiree, who spent his days taking care of his invalid seventy-nine year-old wife. The prosecutor had a difficult time explaining the field sobriety testing procedure for a gentleman who used a walker to get to the witness stand. You don’t need to be a special case like these examples in order to be successful. Be yourself and be the kind of person that ordinary average people will want to believe. I am a firm believer in the truth. In order to win you will may have to testify. You will have to look the jurors in the eye and swear to them that you are innocent. If you are lying, they will see it. But, if you are honest your words will ring true, and they will see that, too. If you and your lawyer adequately prepare and carefully
consider the Six Key Factors of a drunk driving case, you will have a fighting
chance. THE TWO-PRONGED STRATEGY OF DRUNK DRIVING DEFENSE The fact of the matter is that most people who are charged with drunk driving wind up being convicted. Most simply plead guilty in some sort of plea bargain. Some are convicted after a trial. Therefore, in any case, it is important to take a two-pronged approach. Both prongs must be worked at from the beginning. The first prong is consideration of the Six Key Factors, so that you can win the case. The second prong is preparing for sentencing, in case you lose or plea bargain. Let’s face it; you could very well be guilty. That doesn’t make you an evil person. It means that you made a mistake. Learn from your mistake!. If you are an innocent person who is convicted despite your best efforts, don’t be bitter and angry. Use this as an opportunity to learn and grow as a person. Your life will be better and all of our loved ones will be safer. How do you learn from a drunk driving case? This brings us back to the beginning. It’s easy. Get Help! Learn about alcohol abuse, attend A.A. meetings. Get counseling for your personal problems. Get an assessment to determine whether you have and alcohol problem and follow through with treatment recommendations. Make this an experience that turns you into a better person, not just a person with a conviction. Do it before the sentencing hearing. Do it before the trial. Do it right from the beginning of the case. Everyone who appears before a judge at a sentencing hearing (except, perhaps Mahatma Gandhi) says that he is going to change, that he will do the things necessary to become rehabilitated. That is not good enough. Be the rare person who goes into the sentencing hearing saying that I have already done and will continue to do the things necessary for my rehabilitation. You will definitely be treated more fairly if you do. But more importantly, you will have taken a tragic difficult event in your life and turned it into a source of change for the better. Good luck. Don’t drink and drive; that’s why God invented taxicabs.
Andrew Mishlove TOLL FREE (877)384-3739 |
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