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Defense Attorney Role & Duties Pre-Trial

Interviewer: You have an arraignment or you don’t, and what’s the next court appearance called? What’s that first appearance called and what happens there?

Brian Geno: It will be the trial date. The next one is the trial date.

Interviewer: It goes right to trial date? If someone hires you, does that change then? I mean, what events will someone go through when they hire you?

Brian Geno: When someone hires me for a DWI, traffic case or criminal misdemeanor they don’t need multiple court dates, but it might help because it gives an opportunity to be fully prepared. That, of course, is a very good thing. To change the date, its called a continuance. When I get hired, I’m going to be asking the court to order the government to provide me with documentation, statements, criminal records, and information that would be helpful to my client be provided to me. I’m also going to ask my client to advise me about information, witnesses and details that can help. I’m also going to contact those people we know about to provide assistance.

I’m going to ask the court to set the case for trial on a date that works for me and all witnesses. I’m going to be asking the court to give me a chance to speak to the police officer. Regarding DUI cases, I’m going to ask the Richmond Division of Forensic Science to provide me with the technical specs on the machine they used to test my client’s breath alcohol. That takes time and usually that means that I have to move the case to another date at least once.

Interviewer: So you’ll do discovery, you’ll gather whatever evidence is available to your client, you’ll sift through it. What else will happen in your process when you work with a client?

Brian Geno: I’d usually check to see if there’s a police video that came from either the cruiser or from the officer himself. These are all things that we can double check with the officer. I also contact any witnesses that the client has provided or anyone that we could think of. If there are photos, drawings, government documents in other offices that we could use – like drawings from the Virginia Department of Transportation and those sorts of things – I would obtain those.

If we needed an expert witness, which happens sometimes, I would be trying to arrange that. Those are all things that I would look into and make sure are in my file so that when we go to court we have enough ammo to fire off a couple of rounds. We want to be able to fight and you can’t do that if you don’t have a file that’s full of at least the documents that the government says apply. You have to collect all of that.

Interviewer: What happens next? Will you do negotiations with the prosecutor? What are the steps that you’ll go forward with?

Brian Geno: Whenever there is a court hearing about a DWI, whether it’s a motion, a trial or sentencing, it is a good time to work on a voluntary agreement that will benefit a client. I have found that those negotiations work better if that person (and his lawyer) is ready for a trial. The position of strength, the preparation and willingness to fight put you in a better position. Its like you are making your own luck by preparing.

In Virginia, for DWIs, I have found that prosecutors don’t really have as much authority as I would like to reduce a case from DWI to reckless or from DWI to a smaller DWI or to something else, simply because there is a lot of political pressure on the county’s prosecutors to not break DWIs down. There are lobbying organizations that try really hard to prevent any kind of reduction of DWI to something else.

But you go and you try to see what you can do. If you cannot get a better deal by negotiating, then by all means, exercise your right to a trial. Today I had a DWI case, for example, where it was reduced by a deal down to what’s called improper driving – an infraction. When you do that, it’s usually because there are mistakes in the case, and the government knows it. They’ll let you get a nice deal like that. Today was a nice deal.

Implications of Going to Trial

Interviewer: How often do your cases go to trial? Are they resolved pretty frequently before trial?

Brian Geno: I would say that more than half the time, the cases are resolved without going to trial, but I probably go to trial more often than most lawyers. I hate to put a number on it, but it seems to me I go to trial every couple of weeks on somebody’s case. My general impression is, all things being equal, if you don’t know what to do; you’re going to go to trial. I urge my clients to have the confidence to do that.

Interviewer: Have you seen that there is a penalty for going to trial? Do the judges get annoyed and deal with you more harshly?

Brian Geno: I’ve heard in other counties out of Northern Virginia they do that, especially down in the Virginia Beach area. In the Northern Virginia area, I don’t sense that at all. There are a couple circumstances where there is a huge penalty, and it’s not because of the judges. There’s a charge called refusal, which occurs when a person gets stopped for DWI and then they don’t take the required breath test, so they get with Refusal. That offense only has one penalty, and that penalty is you lose your license for a whole year.

If you choose to go to trial, they will continue to press for refusal. If you don’t go to trial, they’ll drop the refusal. It puts this really, really strong motivation on somebody to plead, simply so they won’t lose their license for a whole year. They would rather get a DWI and have a license than to not have a DWI and not have a license. That’s one example, and its not because of the court but rather because of the refusal charge. I think it is an unfortunate statute simply because of the penalty, not because a person refused to give a breath or blood sample.

Challenges During the Arrest Process

Interviewer: Are there points in the arrest process where people feel hopeless because of what’s happened? For instance, if people take field sobriety tests and they fail them and they’re arrested, do you feel that dooms their case? Or when they do a breath test and they blow above a 0.08, do they feel doomed at that point?

Brian Geno: I think people start to feel helpless when the officer pulls them over. That’s one. When they are asked to do a breath test, they can really see the writing on the wall, and they get pretty depressed at that point. Probably the worst of all, though, is when they get locked up. When someone either gets their handcuffs put on them or they’re locked up, that’s when they just really feel bad.

If I happen to talk to them the day after they get the charge, some of what I do is a pep talk, because it’s not as bad as it seems. Even if all of it were true, many times it’s not as bad as they think. A lot of times, people walk out of my office and it’s like a weight’s been lifted off of them because they are starting to realize that not only is the worst case scenario better than they thought, but they also have some hope. They have some chances. That moment where they got the handcuffs clicked on, that moment where they were put in the police car, that moment where the officer says, “I’m arresting you for DWI” – that isn’t the worst.

Now that I think about it, one of the worse moments is probably if you get an officer who’s very harsh or aggressive with you and they dehumanize you; that’s a pretty bad moment, too. I think a lot of police officers are alpha males and they can dehumanize people. The people charged with DUI are regular people, often good people, people who would be a friend but for the fact that they were the DWI defendant.

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