Saturday, December 06, 2008

DWI Defense Perspectives

I had the honor of speaking at a DWI seminar this past week. There were some excellent speakers, and a few of us presented a sharp contrast on how to handle DWI cases.

My topic was low BAC cases. I talked about some things lawyers can do when the defendant's blood-alcohol content is low. Mainly I was focused on BACs below 0.10, but some of the ideas apply when the BAC is up to maybe 0.12. My position was and is that defendants should always fight low BAC cases. I talked about a number of reasons why these cases should be fought, and about specific ways the defense can attack them.

My favorite point here regards "field sobriety tests" (where the police wave a pen in front of your eyes, have you walk a line, and have you stand on one leg, etc.). You can get the FST manual from the feds: Field Sobriety Test Manual. The "participant manual" is the one you want. The manual says that the tests are "highly reliable" indicators as to whether the subject has a BAC over 0.10. My personal opinion is that these tests are bogus, but if you believe they are scientific, that has a real meaning when the BAC ends up at 0.10 or lower.

If the subsequent chemical test (breath or blood) shows a BAC of 0.08 for example, then the defendant should have passed the FSTs. In most cases I've seen the defendant fails all the FSTs. I've seen this with a BAC as low as 0.05. Since the FSTs are the bulk of the supposed proof of probable cause for arrest, then a BAC below 0.10 means that the FSTs were done incorrectly (which you also show on cross of the police officer during the suppression hearing).

Two other speakers presented rather different perspectives on handling DWI cases. Both were there to talk about plea bargaining. One went into great detail on the various issues you can bring up in the course of plea bargaining to show why this particular defendant should get a deal. The talk was pretty good not only for DWI cases but for criminal defense in general.

The other speaker was focused on the plea bargaining policies we're seeing more and more. In many cases the offer is to plead guilty. He was very matter of fact about it, and had an excellent point about how clients just want to get the case resolved and put it behind them. He stressed the importance of making sure your client understands all the consequences and how the lawyer not preparing them in that way makes them unhappy with the lawyer and the result. Bad for business.

The sharpest contrast was between me and the two of them. There I was advocating for fighting these cases and they treated fighting a case as an afterthought. At one point the final speaker even said that the chance of winning a high BAC case is "1 in 100".

I disagree. We have been winning quite a bit more than that. As a ballpark I'd say we win half of our DWI cases. And some of the ones we don't win are because the client gives up. They really do want to get their case over with quickly and get it behind them. It's important to make sure your client understands how long it can take, and all the consequences they'll have to endure while the case is pending.

One way of getting better deals is the friendly approach. If you get along well with the prosecutors and judges, if you have the right political connections, and if you do your homework (as the 2nd speaker described), this can lead to better deals. But this will not work too well when there are policies in place like we now have in DWI cases, or where (as the 3rd speaker mentioned) the case has gotten media attention.

The other way of getting better deals is by fighting and winning. Prosecutors are overworked. They don't want more work and having to do hearings and trials is a lot more work. Some of them do enjoy the challenge, but many are just tired and want to go home. They don't have the time to prepare for the case as well as the defense lawyer. The prosecutor walks into court with a hundred cases, while the defense lawyer has just one.

The other thing about prosecutors is, like the rest of us, they don't like losing. If a lawyer fights and wins repeatedly, prosecutors are going to get tired of losing to him or her. It's difficult in cases where there is a policy governing the plea process.

My view, and the view of defense lawyers who fight, is that where the offer is to plead guilty to the offense charged, that's not a plea bargain. It's a plea, but it's not a bargain. My client can plead guilty without a deal. They don't even need me for that. But I didn't make this stuff up. I learned it in DWI seminars past.
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