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DUI Defense FAQs


Most people don’t qualify for a public defender and so it’s not an option for them. These people are good lawyers, they know they’re smart people and they’re going to become some good defense attorneys in the future. I really don’t want to put these people down, because a lot of them are my colleagues now, but I’ll say there’s a difference between myself and them for sure.

Hiring a lawyer for a DUI case is really important, and it’s a very good idea. If you happen to check on the internet asking that same question you will find the answers ranging from, “No, it doesn’t make any difference,” to, “Yes it’s very important,” but I think the people who say it’s not important really haven’t looked into it very closely.

In Virginia only about ten percent of people win their cases, and I would guess out of that ten percent that most of them were represented by council. Now, some of these cases are so simple that a person can do it without council, but when you get into a case like DWI or DUI, it gets more complicated.

Complicated is not a bad thing for a defendant. Complicated is a good thing for a defendant because it means there are a lot more loops for the prosecution to go through to get a conviction. You can take advantage of that complexity and turn it against the government.

I’ll give you a good example; just last week I was in trial with a DUI case and it turns out the person was given a blood test not a breath test. That means they took a blood sample to determine how much alcohol was in his system and the amount of procedures that the government has to go through for any kind of breath or blood test are a lot. What I did ultimately was use a technicality to beat the case. I proved that the government didn’t know what was used to swab the persons arm before taking the needle and putting it in his arm.

Now, that was the last thing on the government’s mind. It’s in the rules; it’s one of the many, many rules they have to qualify for. They have to satisfy, but they didn’t know what was in the swab that swabbed his arm down and I suggested that if that was alcohol then it would throw off the test and the judge agreed and threw it out.

Now it was a technicality. We used that at trial and it took over two hours to get to the point where we could do that. That’s something that a person without a lawyer would never even think of. They wouldn’t have even had a trial, let alone come to that question, so those sorts of defenses come up all the time. If you don’t have someone who knows what they’re doing, who looks for those sorts of things, you’ll never be able to take advantage of it.

Here’s the trick: once it’s over it’s over. You can’t come back and fight after the whole thing is done. Later on when you look back you may say to yourself… Yeah you’re feeling bad about the fact that you didn’t even fight for yourself, you’re not important enough to yourself to stick up for yourself. That, to me, is the worst shame about a person who goes in there alone and fights for himself without a lawyer. He didn’t even take the time or the energy to do what he could for himself and that’s not good.

That’s just one tiny example, and there are many, but it’s a very good idea to have a lawyer with you on a DWI case. Now, how do you know you have the right one? You have to find someone who, when you talk to them, you get a connection with, if you will. You don’t have to necessarily like them; they don’t have to be your best friend. They don’t have to believe every word you say.

You have to have some confidence in them, because when it’s over you’re going to wonder whether you actually got your money’s worth. You’re going to wonder if that person fought for you, you’re going to have seen everything and question what you did, so you’ve got to find someone who sounds like they know what they’re doing. They’ve got to have some experience to show for it, they’ve got to have some years behind their belt, and they’ve got to care.

You don’t want a person who isn’t willing to spend time or put the effort in. Those are some big ones– someone whose willing to care, put in some effort and has some experience. Another good question to ask yourself is, “Is this lawyer afraid to go to trial? Is he pushing me to plead guilty because he’s unwilling to fight? Does he have trouble explaining why you should fight?”
My personal opinion is that a defendant and his lawyer need absolutely no reason to go to trial. If they want to go to trail they should be able to do it for absolutely no reason at all and taking a swing at your case is one of your rights. I think you should be willing and your lawyer should be willing to exercise that right among all the other options.

Of all the people in the court room, the judge would be the one most likely to know how often cases are won or lost based upon skill, as well as how often cases are won or lost based upon the lack of skill.

When you have a lawyer, the judge is going to know if you just lost your case because you didn’t know to ask a certain question or you didn’t try to obtain some record, or you just weren’t paying attention. On the other hand he’ll know that you outsmarted the prosecution and he saw you do it and he believes that you have the law correctly to defend yourself. Judges know better than anyone the value of having an attorney to represent you.

There’s a common saying among lawyers and it’s not a joke, that “Anybody who has themself for a lawyer, has a fool for a client,” and that goes for not only lawyers, but particularly people who are not lawyers. I have talked to so many people who got a little bit of advice from someone who kind of knows what’s going on, or maybe they went to court themselves on a similar case and they figured out what should be done about your case.

That is just a dumb idea, because that person doesn’t have anything at risk, that person doesn’t have a background in the law, doesn’t know what all the issues are that could apply even if they say they do know. Maybe they were a police officer in another jurisdiction, maybe they went to law school, maybe they have had three or four DWIs, or maybe they sat in court for a whole day and listened to everything. Those do not qualify a person to use the skills that a well trained lawyer would use to protect you. You need a well trained lawyer to fight for you and it is worth it.

The biggest point about public defenders that people in the public need to know is that you can’t have a public defender just because you want one. You have to qualify, you have to be indigent, and that means that you’re broke. If you are broke, you’re not working, you don’t have any money set aside, and you don’t own property, then you can get a public defender.

Let’s assume that you could get a public defender; those lawyers, although they’re fine lawyers and they’re hired not because they’re dumb but because they’re smart, they’re not always hired because they’re the last resort but because they are willing to do public service. But they are very, very busy.

They have a huge case load, and so they don’t typically have the time to really focus on a case like a person who has been hired just for you. Now, don’t get me wrong– just because you’ve hired a private attorney, that doesn’t mean that that’s all they have on their plate. They’ve got other things they’re doing, but typically they have a lot more time to do their cases, so they know more tricks and that sort of thing.

You also don’t always see public defenders who are very old or seasoned lawyers. There are a few, but usually that’s not what you find. With a private attorney, you get the seasoned lawyer who has gone out into private practice, and that’s the guy that you want.
If someone is able to get a public defender, then they have to decide how much muscle they want in the court room. A well-seasoned and experienced attorney has all kinds of tricks that they can use. One should, if they can, get the best they can because you can’t go back and redo. Many times a public defender will be limited on time and will seem to lack the care and the energy that a private attorney will use.

My suggestion would be that if you can get a public defender you should also interview with people who are privately retained, because for starters it’s much easier to get them on the phone, it’s much easier to set up an appointment with them, and it’s much easier to see them multiple times. It’s much easier to see them in the court room than a public defender, who’s usually on the run from court room to court room. That’s why even if you do have the choice, you’ll probably want to do the best you can to get a privately retained attorney.

If you’re looking at this post on the internet, you probably already know that you either had a chance to do a breath test or a chance to do a blood test. Perhaps you did it and perhaps you didn’t, but assuming you have a chance looking forward to do this, you should in Virginia take the breath or blood test.

Virginia has a law called The Implied Consent Law and it says that you have given your applied consent to take a blood or breath test if you are driving in the state of Virginia. If you choose not to take that test, the government can charge you with a separate offence. It’s not on a first time a criminal offence, it’s a civil offence. If it happens a second time it is a criminal offence and it only has one penalty, which is the loss of your driver’s license for a whole year.

How you get convicted of it is if the judge determines that you unreasonably refused to take a blood or breath test, so that’s the one reason you should take it. Now on that, when I’m talking about the blood or breath test I’m talking about the one in the police station, not the one on the street.

On the street they give you a little device called a preliminary breath test. It’s like a little white square, like a pack of cigarettes with a little tube on top. They stick that in your face and tell you to blow. That one you can legally refuse to take and there’s no consequence for doing so. I rarely see that test helping someone; it almost always hurts them and so that one you should refuse.

They never tell you if have failed a roadside sobriety test, but I’ll let you know that if there’s any kind of bubble on the field sobriety, the roadside field sobriety test is considered a fail. If you are doing a Walk And Turn test or a One Leg Stand test– those are two of the approved tests– if you have even one flaw in the performance of it they will report it to the court as a failure.

According to the National Highway Transportation Safety Administration, NHTSA, if you have two or more errors then it’s supposed to show that you have failed that test, but the police officer on the street very often will just report to the magistrate or to the judge that you failed it simply by missing one.

The best advice is, “Don’t do any of the field sobriety tests; don’t do any at all.” You don’t have to, and your performance of those tests is supposed to be by consent. Why would you give the police a good reason to arrest you? Most of the time people take that test because the police made it seem like they had to. Maybe they’ll say it in a nice way, maybe they won’t, but people don’t feel like they have a choice. The police officer tells them what to do and they do it.

Sometimes they even get forceful with them, but you don’t have to do it, and you shouldn’t do it. You shouldn’t start to do any of them, because once you’ve done any of them they will report that little bit as a failure. Then they’ll use your choice not to do any of the subsequent tests as evidence of intoxication, but if you never did any at all then they can’t use any of them as evidence of intoxication, so my strong advice would be never to start the tests in the first place.

That refers to a test which is an approved test by the National Highway Transportation Safety Administration called The Horizontal Gaze Nystagmus Test. What it means is that a person normally has a little bit of what they call nystagmus in their eyes. Their eyes can just go side to side a little bit, so that you must turn your head and continue to see something well.

It’s designed to work so that when you move you head, the nystagmus keeps the object you’re looking at steady, but if your head is still and your eyes continue to wobble like that, that’s an unnatural thing which they call nystagmus, so when they hold something in front of your eyes and they take that object out to the periphery of your vision, you’re not moving your head; your eyes are focusing on that object. Your nystagmus will increase if you have certain health conditions, one of them being alcohol or drug intoxication.

They do this test and they see your eyes wobbling and then they say, “Well you’ve got a clue related to the nystagmus,” and they’ll go up and down and side to side and report all that back– at least that’s the goal. There’s been a lot of controversy through that about that test, because many things can cause nystagmus which are not intoxication.

Here’s the question; what happens if you fail The Horizontal Gaze Nystagmus Test? Well, a trained attorney can tear that apart. I’ll give you a good example. A couple of weeks ago I went into court in Prince William County, Virginia, and the prosecution tried to use what they thought were failed results of Horizontal Gaze Nystagmus test against my client. I managed to keep that evidence out of the record, because I said that they can’t tell what that nystagmus means unless they have an expert witness.

The government didn’t plan on bringing in a witness; all they planned on doing was saying that there was nystagmus when the officer did the test. That is at the maximum deviation. There was extraordinary nystagmus and so I said that without an expert they can’t put that into evidence and certainly without the proper questioning the police officer wouldn’t be able to tell what that means, and so we kept the test out.

As far as The Nystagmus Test goes they couldn’t use it to prove intoxication, so if you couldn’t follow the pen with your eyes very well don’t worry, we can fix that, that’s the answer.

My first advice would be not to do anything. Don’t do the test and hopefully you won’t have done any of the tests previously, nor any of the requested tests afterward. Don’t do any at all; it’s much better than doing just a couple or doing this one. With respect to saying the alphabet, the results from being able to or not be able to say the alphabet are really unscientific.

It’s not an approved test by the National Highway Transportation Safety Administration, NHTSA and so when the police use that they’re taking a chance that they’re going to try to prove their case with a test which means nothing. If it were scientifically collated to alcohol use then that would make a difference but what you typically find on the street is the officer using a variation of that test.

Instead of saying for example, “Go A to Z,” he’ll say, “Go from F to R,” or he’ll say, “Go from Z to A backwards,” something like that. When you ask the officer, “Why,” they may say, “Well that’s the way I learned to do it,” but many times it comes down to they’re trying to make the test a little more challenging.

If a person right now tries to say the alphabet backwards or start at F and go to R or some variation on the test, there’s not real promise that even a sober person can do it, or a person who was healthy could do it or a person who is well rested could do it. It’s unscientific and if you did that test and failed it or if you did that test and passed it, don’t worry, it’s not going to be the end of the case. We can fix this, but yes you should refuse to do that test.

With a DWI they usually have two devices that you can blow into. The first one is called a Preliminary Breath Test that’s done on the street, right before they arrest you, and that one is optional and should be refused. Obviously be nice when you are refusing, but refuse because that test rarely helps anyone. If you ask a police officer he may say, “Oh it’s helped a few people who didn’t get arrested after they took it,” but for the most part it was given and right after it was given to the citizen that person was arrested.

My suggestion is don’t take it and refuse it along with all the other field sobriety tests. Now when it comes to the one in the police station there is a statute which requires that the person take it. If they do not take it they can be charged with an offence called Refusal. The penalty for that is that they lose their driver’s license for a whole year– no restricted driver’s license, no limited driving, it’s just lost for a whole year. Many times that refusal has worse penalties than the DUI if they were convicted.

You don’t want to win the battle and lose the war on that one. You should have refused all field tests previously when you finally get to the police station take the test. Don’t even suggest that you won’t take the test, because officers love to give refusal and will look for opportunities to force it on you. As soon as that test is offered at the police station go ahead and take it.

If they can’t give it to you for some reason, for instance if the machine is broken or something and they offer you a blood test, go ahead and take that, but if you don’t then that refusal is coming your way. There are a few exceptions, but my suggestion is take the breath test or the blood test when it comes if it’s the one at the police station.

If a person has really only had two twelve ounce beers, two regular glasses of wine, or two regular sized mixed drinks, that should only raise their blood alcohol content to point zero six, that is if they’re approximately a hundred and seventy five pounds, which is below what is commonly considered a presumptive amount to make you under the influence.

If that’s true then you probably have a really good reason to expect to win your case, because the alcohol won’t have affected you much. If you’d had much more than that, it’ll start to affect you more and more. So, if you really are that person who has just had two, and you’ve been charged anyway, get a lawyer because the government’s not just going to give up at court and say, “Oops we’re so sorry, we didn’t mean to charge you.”

In fact, they are going to go ahead with the prosecution and you may be convicted of DWI. You might be convicted of reckless driving. You might be convicted of something else, but they want a conviction so get a lawyer because a lawyer can use those good facts to get a good result. If you say to yourself, “Well I only had two beers so I can’t be convicted,” you’re going to come out of there unhappy because you’re going to get convicted. Get a lawyer; let him use those good facts to win your case.

Everyone wants to hear you’re not guilty, and there’s only one really way to do it: take the case seriously and fight for yourself. Give your lawyer a chance to do his work for you. Help him, give him all of the facts as you know them, and participate in what he says. If he doesn’t have many ideas for you then ask him if he’ll think about it.

If it turns out that you do everything you can and he’s done everything he can, your chance of getting a not guilty verdict is much, much higher. Everyone wants to win the case and you can’t win just by wanting it. You have to actually go out and do something, and so my suggestion is do something, and by that I mean get a lawyer, prepare, help him in your defense and then on the day when it comes if you want to win you have to go to trial.

Give him the opportunity to go to trial for you. If you tell him, “Oh I just want to get it over with,” and then plead guilty or something like that, you’re not going to come out of there with a not guilty, you’re going to come out of there with guilty, so you have to get the nerve to let him fight for you and you have to give him the help to be able to do it well.

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