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Top Myths And Misconceptions Regarding DUI Charges

Rectification: A lot of people think that the officer starts to collect information way before the breathalyzer test, so when the officer sees you driving on the road, obviously he can see if you’re driving well or badly. Also, the officer can see if you’ve broken the law and how much. Once he pulls you over for whatever that violation of law is, he can see how you look, he can also smell how your breath smells, so if he smells alcohol, obviously that will give him a clue. If your speech is slurred, your eyes are glassy, if your clothing is disheveled; those are all things which could help the officer figure out if you’re drunk or high.

Finally, when they ask you out of the car, if your demeanor is argumentative or combative, that’s another one. And then comes the field sobriety tests and so, in Virginia, they usually use two or three per person, I mean per stop, one of them might be the Walk and Turn test, which is a dexterity test, another one is the stand on one leg and raise your other leg 6 inches off the ground and stand their balanced for a period of time, most of the time 30 seconds. They may ask you to say parts of the alphabets starting with letter in the middle and going to a letter also in the middle. They might ask you to count and touching your finger to your thumb and counting — each time you touch either your next finger, they might ask you to touch your nose. Those are all tests which come before the breathalyzer.

If the officer has any or all of those things and then, a person refuses the breathalyzer, the officer still has an awful lot of information that he could use. In Virginia, that breathalyzer is really important. So, if you have a lot of other information and no breathalyzer, it certainly hurts the government’s case but the government has the ability to prove their case without the breath certificate. So, the misconception is that if you refuse to take the breathalyzer, you’ll be okay, that is not correct. That is a misconception.

Rectification: That is another common misconception because a person think they are taking a test on a curve, they could either get an A or they could get an F. And so, they say, “Well, I did pretty good because in my mind, I got a B”, although they may not say B but they may be thinking that they did pretty well, not perfect but pretty good is enough. When in fact what the police officer is looking for is 100 per cent perfect performance, so if you do anything less than absolutely perfect, the officer writes that down as a clue, a clue to intoxication, so pretty good is also pretty bad when it comes to your performance on field sobriety tests.

When you get to court, a good attorney is able to pick a part of the performance and convince the court to use a different standard, not the “I did perfect”, or “failed” but rather the pretty good versus perfect so that, for example, in front of a judge, the person may be able to prove that they were pretty balanced or they followed instructions pretty well or they could be balanced all right or they could say the alphabet, pretty fairly, then the judge may actually acquit them because they don’t have a probable cause for the arrest. But as far as the police go, they’ll still make the charge and they’ll still make the arrest and they’ll still force a person to get a lawyer and defend his case. It’s not easier for a lawyer to defend a case like that; it’s just that he has something he can use to win. So, winning doesn’t mean easy winning, it means fighting and fighting is good. So, just the fact that someone may say, “My case is easy because they have things to use in court”, is also a third misconception.

Rectification: It is much more likely that you will get off if you don’t give the breathalyzer and the field tests but really, to be even more certain, a person should just refuse to talk to the police officer altogether. A person should refuse to perform any of the tests altogether, a person should limit any conversation or any interaction with the police officer to minimum. That would make it even better. But if the officer still has the ability to use things like they smell of alcohol, the bloodshot eyes, terrible driving behavior and maybe other little clues that might exist to try to prove their case but it definitely puts a huge dent in the government’s case if you have not done the breathalyzer nor the field sobriety tests.

Backing up a little bit, it is a misconception to think that the breathalyzer and the sobriety tests alone will get you off, they could still use it but in Virginia, they have a way of almost forcing you to take that breath test, they have a charge called Refusal, and it gives you the severe penalty of a loss of your license for a whole year if you didn’t take that breath test. You may win the battle but lose the war, a person often times can’t afford to be without a license for a year and they would rather take a conviction for DWI than to be without a license for a whole year, so it really does put pressure on a person to do the breath test even though they would rather not, and that’s the misconception.

Rectification: That is another misconception. Miranda Rights still apply to when they interrogate you, so if this particular offense, DWI, does not require an interrogation, then they can prove their case without any statements from you at all. So, Miranda Rights would be irrelevant, it would be as if they get everything they need without asking you any interrogation and then prove their case without any statements. Miranda Rights are great on TV but they don’t always give that clear-cut win that people would like. Now, Miranda Rights are important if they interrogate you, and when I say interrogate, I mean you’re under arrest and then they ask you questions. That is a legal determination when you are detained.

So, if they’re just stopping you on the side of the run with your car and they say, “Where you’ve been? Have you had anything to drink tonight? How much did you have to drink.” Those are not questions after interrogation; it’s when they limit your freedom, it’s when they take your driver’s license and you can’t go anywhere or they trap your car in or you’re handcuffed or they’ve got their hand on their weapon or anything like that, those are the use of force to control you and under those circumstances, you are detained. They may ask you questions and even though they’ve asked you questions, the questions may still not matter and so they can still go ahead with the case, it won’t be dismissed just because of that.

Rectification: That is true because in Virginia, a person is allowed to give field sobriety tests, they are allowed to participate in all of that investigation on the side of the road, they don’t have to. If the officer was rude, they can get away with rude but once they force you or coerce you into doing field sobriety tests, they coerce you into speaking to them, they give you a lawful order and expect you to answer it, you are honestly expected to comply and to answer and that intimidation factor removes the consensual nature of the encounter and then that can cause the government to lose the right to use those tests or use the information they gained.

I’ve seen cases dismissed frequently because the consensual nature of the encounter was lost when the officer was rude and blunt and forceful and intimidating. So, that one is not a misconception the fact that it’s on camera makes it even better because the police cannot go back and say that it didn’t happen. To be honest with you, police do misuse power, I think it’s fairly common for police to force themselves on people and so, I think it’s a perfectly good defense to say that there was no consensual nature to the encounter.

Rectification: That is a huge misconception.  The police do not have the power to always — they don’t have control of a case to drop it once they’ve made a charge. The fact that he’s real nice, in my view, is just a way to also get you to be real nice, I mean people’s skills count but by saying that you’ve got nothing to worry about is really misleading because he may mean, “I am not going to put you in jail and you don’t have to worry about that, just answer my questions”, and you’re thinking I don’t have anything to worry about, this is all going to go away, so you all are talking about two different things.

Police assurances that everything’s going to be just fine so often turned out to be only good for the police, only good for the government and not good for a defendant. So, my humble suggestion is take any kind of assurances from the police, take any kind of super nice conduct from the police with a grain of salt, they will use that information for a conviction and that’s their job.  They’re not allowed to be the police officer who doesn’t get convictions; they are there to enforce the law and that’s it.  So, that one is a misconception.

Rectification: Another misconception.  A person doesn’t have to be an alcoholic to drive drink and the court is not trying to catch alcoholics; they’re trying to catch people who drive drunk and they’re not trying to get people who drive alcoholic. So, you should put aside any notion that the court will understand that it was just once because everyone who gets the first DWI and most people who get convicted of that charge are not alcoholic users, they got out of hand this one time.  So, that one, you should not rely on that one.  That’s sort of like saying, “Oh, this is my first offense”, that never works either.

Rectification: If a person has a high tolerance for alcohol that would make it harder for the government to determine that their performance on the field sobriety tests means that they were drunk when they were driving. The definition of driving while intoxicated is that you were under the influence, or in other words, affected by alcohol while you were driving.  I don’t think it means that you just had alcohol in your system but as a practical matter, in court, if they can prove that you had alcohol in your system, despite the fact that you weren’t very affected by that alcohol, they can get a conviction.

So, I argue it whenever I can and will frequently win when I move to strike for probable cause reasons because a person’s behavior seemed all right and this person who asked this question may have a point in that they don’t look very affected but I think it’s a bad idea for anyone to do field sobriety tests when they get stopped for DWI thinking that their tolerance is so high that they’ll be all right.  It’s just like taunting the police to do tests because they look at your performance, did you do 100 per cent and if you weren’t 100 per cent, then you failed. If you are pretty good better than most people and you do 99 per cent, then that particular test is going to be considered a failure and a clue that you’re DWI.  So, dumb idea to do the field sobriety tests just because you think that you have a high tolerance.

Rectification: That is a misconception and that’s not enough.  A person can say, “I had something to drink”, and what they mean is one drink and the officer will then get them out of the car to do some field sobriety tests. He doesn’t two or three or five, all he needs is something.  So, if you say you had a single drink, he could get you out of the car to have you do field sobriety tests.  And later on, if you prove that you only have three, let’s say you proved that you had three and you could successfully prove that you had those all within one hour, okay, well that would cause a person of about 150 pounds to 160 pounds to have a blood alcohol content of 0.09 not in the first hour but in the second hour and maybe even a little bit in the third hour.  It’s just because you can’t avoid it; the alcohol will go through your system and it will affect you.  So, three drinks is plenty to get you to the point where you can’t do well.

Rectification: They will not go easy, that is a misconception. I have seen the court treat people who have military careers the same as everyone else, I’ve seen them treat people who have law enforcement background like everyone else, and I’ve seen them treat people who have top secret clearances like everyone else.  I have seen them treat lawyers. There’s a very rare person who gets off simply because of his profession.

They give a break to a person who is in the military or law enforcement than others but it’s not a very big break if anything.  So, I would not rely on that sort of thing, your profession, I wouldn’t rely on the fact that you have lots of volunteer service, I wouldn’t rely on the fact that you have helped even if it were true, Mother Teresa treat leopards in India, none of that really makes that much difference.  If you’re going to drink and drive, they are going to prosecute you and you will be vulnerable no matter what you do.  Pastures would be the same way, so that is a misconception.

Rectification: It is a misconception to think that a single mother will get lenient treatment.  I have seen single mothers, single fathers; all have the same exact treatment as anyone else.  If your drinking was excessive, they’ll treat you just as harsh by putting you in jail despite your children as anyone else. So, you should not rely on that, and/or expect the court to, you should get a good lawyer and you should defend yourself as vigorously as possible because you’ve got so much more to lose than other people and so, you can’t leave it up to chance.  A single mother can be driven to higher pressure than other people and so, maybe driven to drink and so, a single mother should be extra careful not to do this, not to get into it because she does have a lot riding on her ability to drive, her ability to take care of her children, her ability to pay for her bills all those things and DWIs make all of those things harder.  So, they should get a lawyer and fight just like anyone else would.

Rectification: The Virginia statute includes being under the influence of drugs and so, if you have a prescription and you are affected when you drive so that you can’t drive well; they could technically prosecute you for that.  And it doesn’t matter that it’s prescription, it doesn’t matter that you are allowed to have it. For example, alcohol is legal and yet, the misuse of it can get you arrested and this prescription is also legal but the misuse of it can get you arrested, so it’s the same exact concept.

I will add that a prescription, driving while under the influence of drugs, and that’s a prescription is much harder to prove than an alcohol related DWI.  So, fighting real hard is a great idea but when a person says, “I don’t have to worry”, that makes me worry because it’s not easy to win that case; it’s just winnable. If you fight hard, you prepare well, you can win that but should never consider it just an easy thing.  If something is truly easy, you don’t have to prepare much, you don’t have to fight hard and the good result will come without a lot of effort and certainly, with DWI for prescription, medication or any other kind of drug is something that you can win if you fight hard.  So, there, you have two misconceptions in one.

Rectification: That is a misconception as well because they don’t have a DWI of a lesser sort because of a legal prescription sleeping drug. Most of the times, the court, when they convict a person of DWI, gives them sentences which are on the lighter end of the spectrum.  In other words, they give them stuff which is kind of as small as they can.  The problem with DWI is that there are a lot of things they are forced to give you.

So, even if you’re convicted or charged with driving under the influence of a legal sleeping drug, they still have to give you some of these minimum penalties which include a year loss of license, the alcohol safety action program, the ignition interlock device. The penalties can be severe just like every other case.  And I would think that you find perhaps third of the prosecutors out there in the state of Virginia who would give the exact same penalty for being convicted of driving while on drugs.  They would give you the exact same penalty as DWI for alcohol.

Rectification: In every state, DWI involves driving while intoxicated from alcohol, that’s everywhere.  In that sense, it’s the same but many times, the government tries to convict someone for a second DWI because the first one was in their home state and now, they’re in Virginia and now, this would be in Virginia the second. Those cases almost always fail because there are differences between the other state and Virginia.  So, as a practical matter, for a regular person, the law is pretty much the same but as a technical matter, for lawyers, they’re almost always different enough that they cannot be considered the same statute and that’s really good for a defendant, really good for a citizen.

You don’t want them to be so close because if you have a DWI in another state, once you come to Virginia, if you get another one, your penalties are going to be really severe.  You’re going to have 3 years loss of license, you’re going to have mandatory jail time, you’re going to have to have an ignition interlock in your car but only after you’ve been walking for 4 months or 1 year, so the penalties are a lot more severe for the second. So, thank goodness, the laws are different but as a practical matter, they are going to be a lot the same, don’t drink and drive, that’s the take away from both states.

Rectification: That is a misconception.  If you get a conviction in another state and then you come back to Virginia and I got to believe that this would be the same, no matter where it was. That state which convicted you in this example, let’s just say it was Nevada, Nevada convicted you, they are going to require that you take a series of classes, probation essentially.  And you may be able to take that in your home state but in your home state, you’ll have to sign up and you’ll have to pay for the class and you’ll have to report back to the state where it came from, in this example, Nevada. Also, if you get charged with another crime like, for example, a DWI or other serious crime in your home state, Nevada wants to know about it and they’re going to have their probation look into whether or not you were conviction-free in this state while you were on probation in their state.  And if you turn out to have something else, they would bring you back to Nevada and they will charge you with a violation of the terms of your sentence and so, that’s a second thing that could affect you in our state.

A third one would be that that state would probably suspend your driver’s license in that state just as a part of the DWI in that case, most states do that, they suspend your driver’s license on a conviction of DWI.  So, they suspend you in Vegas, in Nevada, okay.  You would say, “Well, I am not going to be back in Nevada, so it doesn’t matter”, well, not true.  What they do is almost all states have an interstate compact so that the DMV from Virginia and the DMV from Nevada or Texas or Alabama or wherever, they apply penalties that are used in the other states.  And so, if Nevada suspends you, it’s very, very likely that Virginia is going to suspend your license too. Now, if Nevada would, instead of suspending you, they would suspend and then give you a restricted license to drive to and from work or whatever. In Virginia, they have their own statue for restricted driver’s license but they don’t have an order from the Nevada court that says you can drive to and from work.  So, you may wind up with no restricted, just no license at all in Virginia, because you got suspended in Nevada.

So, those are three or four things that could affect you and I would say that just because you’re not in that state doesn’t mean that they can’t exert a little punishment on you here by charging you money or ordering that you return to that state to go to jail if you’ve broken you probation. If you don’t think that they can make you go back to Nevada to serve a sentence, you’ve got another thing coming.  The state will issue what’s called an interstate detainer and in Virginia, they may just serve it on you at your house and hold you in jail until Nevada comes to pick you up, or they’ll just hold you in jail until you’re bond out for that state, so yes, they can affect you in this other state while you live in Virginia and so, you can’t escape the consequences of a DWI simply because you did it in another state. So, when you go on vacation, watch your drinking and your driving just like you would here, and that’s the misconception.

Rectification: That is a misconception.  In the state of Virginia, you can expunge charges but you can’t expunge convictions.  So, if you were convicted of DWI, it’s not going to be expunged. If you got, for example, some kind of deferred disposition, they held off on actually sentencing you for a period of time and at the end, they dropped it, then you may be able to get that expunged but there are certain charges in Virginia which the statutes even say and this dismissal is not subject to expungement.  So, for DWI, that’s not expugnable if you get convicted of it and you will have to live with it.

If they reduce your DWI to reckless driving so that you can get a reckless instead of a DWI, that reckless is not expugnable either and the reason why it’s because you can expunge charges but not convictions.  So, you’re not going to get it removed. People often call me to say, “I’m having trouble getting a job because I got this or that charge”, it could be a DWI, it could be petty larceny, it could be possession of marijuana, it could be anything worse and I’ll tell them I’m sorry.  You can’t get that expunged even if it’s affecting your job.  The only thing you can do is get a pardon from the governor of the state.  And even then, once they pardoned it, it doesn’t mean that it’s not going to affect you in some way.  So, don’t expect to just expunge something when it’s over.  You don’t have authority to expunge stuff.

Rectification: That is partly true and partly false.  In Virginia, they don’t have to prove that you were 0.08 or more to convict you.  If you were under 0.08 but your driving behavior clearly was affected by alcohol, technically they could convict you. Now, it doesn’t happen all that much because 0.08 is often sort of a threshold for the judges in the state where they’ll say, “Hey, if you didn’t get him 0.08, then I don’t really feel like that’s enough”, so they have a number in their mind that they want to use.

If you’re over it, you can get convicted and if you’re under it, no.  But as a technical matter, there is no real 0.08, that is a presumed under the influence number.  And a presumption is something that the government can work with. So, you have a good chance of beating it if you have a 0.07 or less but you still have to go out and earn it, it’s just like everything, you have to go out and win that one and you’ll have to fight for it.  So, get a lawyer because the lawyer can certainly come up with a way to do that but if you’re just going there and saying, “I’m under 0.08, drop it”, you’re going to get a big snicker from the court and they’ll tell you the next court date and tell you come on back because you got trial.

Rectification: That is a misconception.  Most people who get DWIs are there for the first time and the state wide conviction rate for not necessarily DWIs but for all charges is really more than 50 per cent, it’s probably more than 75 per cent. The police can pick and choose who they charge and so, they don’t go out intentionally picking bad cases to charge people, they pick the ones they think they can win where they have the evidence to win it.  So, whether it’s a first offender or not, they’ll still go after them because they have the evidence to do it. I very rarely see people get off of a DWI because it’s their first one.  And as a matter of fact, I can’t think of a single example in 25 years where they let someone go simply because it was their first offense of any kind or their first DWI.  So, don’t rely on that, people try to rely on it and it is a mistake.

Rectification: That is a misconception because if a person is driving and they pull off to the side of the road and they’re still behind the wheel, if they still have the electrical system in their car turned on, they are considered driving. So, if you pull over, and then you have your radio on, or you pull over and you have the heater on or you pull over and the engine is running even if you’re in park, even if you’re in the backseat, it’s still considered driving.  So, they can arrest you if you’re intoxicated. I have had cases where a person was outside the car with the keys in their pocket and the car was off and they clearly couldn’t have been driving and they were still charged.  Now, we can win that case but that doesn’t make it easy, we have to get ready and we have to go in there and we have to fight for it because the government made the charge and we have to earn a win, we have to earn it.

So, whenever someone says, “Oh, it’s easy”, that’s a red flag for me and it’s a misconception.  But then, when they say they were pulled over, really the legal question is, was the electrical system turned on?  Virginia has a strange set of statues and a strange set of law when it comes to operating.  If you were driving a vehicle and you drove off the road and you landed in a ditch so that your car was completely immobilized and while you were in the ditch, you broke your axel so that your car couldn’t turn and you could not move, I mean you might as well be sitting in a concrete block but your electrical system is on, you can be charged with DWI even if that field that you’re stuck in is private property, you can charged with DWI.  It’s a strange law but the Supreme Court of Virginia has upheld it despite many challenges, many very logical challenges, they love to say someone is operating when that car cannot move. That is a misconception to just pull over and say, you’re okay, for starters because they can be dead wrong but you still have to fight to win and the other one is because you could be dead wrong about whether or not you were operating.  So, that’s the misconception.

Rectification: That is a misconception.  A person should not talk about their case, any of the details of their case to anybody other than their lawyer.  I suppose they can talk about it to their priest because the laws of evidence will permit anyone who have heard a person admitting to be able to testify as to what he said.  It’s called an admission against interest under the rules of evidence. So, if you go on social media and you say stuff, okay, the prosecutor can go on Facebook or Twitter and they can read it and then they can bring it into court and they can use it to authenticate — they can authenticate it using your own statements and then they can use it against you.

So, if you go on Facebook and you say, “I was arrested for DWI and they’re totally wrong because I told them I wasn’t drinking but in fact, I was”, okay, now you’ve said you were drinking and that is an admission against interest which the prosecutor can use and the court can admit into evidence despite what your own lawyer may choose to object to. My advice is don’t talk about your case at all, and don’t tell your parents, don’t tell your wife, don’t talk with your friends, certainly don’t put it out there in social media where the whole world can read it and don’t talk to the police officer, nothing, just talk to your lawyer only so he can prepare defense and wait till the whole thing is over because you go chatting about it on social media.

Rectification: That is a misconception and a bad idea.  The court will probably understand your habit and they will appreciate your honesty and they will use every statement you just made against you.  So, you can come clean if you feel guilty or come clean because you think it’ll help you but you will make it worse. My advice is do not talk, do not share this information with anybody and certainly don’t think that by full disclosure, your mea culpa will give you any real better chance of winning; it just won’t happen that way.  Nobody gets a better result in court because they admitted stuff.  Sometimes, the police will say, “You were cooperative”, and that’s code for what they talked, they sang like a bird.  The better advice is to just say nothing.

A sort of a second cousin to that misconception is when a person says — they were asked a question and then they answered the question and then, I’ll say, “Why did you answer the question?  You don’t have to”, and they’d say, “Well, I couldn’t lie”, and my response is, “It’s not a lie to say nothing”.  It is a misconception to believe that you have to answer a question because your only alternative is to lie. You can say nothing and that’s your right and they’re not allowed to hold that against you and it saves you from having to try to explain away your admission of guilt later on.  So, that’s the misconception.

Rectification: That is a misconception.  I hate that misconception but it is a misconception and I wouldn’t have a business if it weren’t a misconception.  As a matter of fact, criminal defense lawyers all around the state would have to agree that they have won a lot of cases all because they have looked into the details. If you do an act and you believe that that act is the equivalent of the crime of DWI or you do an act and you believe that act is the equivalent of any other crime and therefore, you’re going to be convicted, you’ve overlooked a huge benefit that you have.  Lawyers are really good at finding loopholes, as a matter of facts, half of the jokes about lawyers involve them finding loopholes, questioning the obvious, turning obvious things into complicated things, misdirecting where it needs to be done, constantly finding away out of a tight situation.  That’s what lawyers do and the reason they’re able to do it is because there are loopholes in all of these criminal cases including DWIs.

Just today, I had a case that was dismissed. It wasn’t dismissed because of something that I foresaw in advance and it wasn’t something that mitigated against the conduct that my client was said to have done.  He, in fact, had done exactly what they charged him with but we won on a procedural tactic. Sometimes you win on an evidentiary tactic, sometimes you win on a technical tactic, sometimes you just outlast the government, so you never know where you’re going to get a victory but any kind of victory is better than losing and so, if you just go in there with the attitude that you are doomed to lose, you’ll probably get what you say because you’re probably prepared less than you should but if you’re prepared properly, if you use the lawyer, if you help him with your defense, you stand a much better chance of winning.

But all that being said, you can’t go back later on and re-defend yourself after the whole thing is over.  When all the dust settles, if you look back and you say, “I didn’t lift the finger to help myself because I believed I was doomed”, who is more important to help than you?  If you won’t defend yourself, no one else is going to jump up and stand beside you.  You have to jump up now and at least try so that later on, you don’t look back and say, “Man, I didn’t even lift the finger for myself”. I’m saying even if it does look like you have bad prospects, that’s no reason not to get up and take a swing because sometimes, you win those cases where you thought you’re going to lose and I love winning those because it gives me a reason to say to a person who says, “I’m doomed”, it gives me a reason to say you are not doomed because the last guy who was doomed won and there are going to be guys tomorrow who were doomed who are going to win.  The only question is, are you going to be one of those guys who was doomed and one?  So, that’s the misconception.

Rectification: That is a misconception.  Honestly, if the person chooses to go on their own for a case as serious as a DWI, I wish them well and I hope they do win but they have a much greater chance of losing when they represent themselves than if they take counsel. For starters, it’s because they cannot make the arguments that they would like to make with the credibility they would like on their own behalf.  The court thinks that they would say anything to win.  They would lie about the facts to win, they would fudge the details to win and so, those are all reasons to — you would start off at a disadvantage than if you had counsel.

Second, those friends who got DWIs, those friends who got other charges probably don’t have the kind of experience you need to represent someone for a DWI like, for example, knowing the rules of evidence, knowing the rules of criminal procedure, knowing what this particular does on a day-to-day basis, knowing what this prosecutor’s reputation is.  Those are all things that really matter.  Also knowing how the different programs work if you’re convicted.  A person’s few friends probably only have their own experiences to draw from. I have found that when a person says, “I have a friend or a couple of friends who have gone through this”, what they have is a couple of friends who are convicted.  So, they didn’t actually win and so, if you use the experience of those friends who didn’t win, you’re probably going to get the same result they got.

Also, advice on the internet is done so many times by people who don’t really know what they are talking about.  Maybe it’s a lawyer from another state who doesn’t know this particular state’s rules or maybe it’s a person who is a third year law student or a person who is graduated from the police academy or something like that, so they have a little bit knowledge but not enough to really do well.  And it’s sort of like going to a first year attorney and saying, “Represent me”, as well as the guy who’s practicing in this area on a regular basis in this court all the time. The difference is going to be dramatic.  Also, the people who will say things because they’re your friend or they’re on the internet, they don’t necessarily have your best interest at heart, they certainly don’t have only your interest at heart and an attorney is ethically bound to have your best interest at hear.  So, you don’t have nearly enough information, you don’t know what you don’t know and you don’t have anybody there with you to really use whatever they are suggesting you use to try to win when  you use your friend as your experience.

I call these jailhouse lawyers because it’s someone who’s sort of going through the experience who knows enough to tell you something and convince you that they know something but they really don’t know enough to get you off.  So, don’t use the jailhouse lawyer, don’t use the friend who’s been through it a couple of times, don’t rely on the internet, call an attorney who knows what they’re doing, who can demonstrate to you that they can come up with the game plan.  That’s the guy to use.  So, the misconception is that you can come up with this defense on your own.

Rectification: That is a misconception because you cannot say that your experience is just like someone else’s.  I’ll give you a good example. If you have the exact same scenario from the exact same day using the exact same police officer but you go to court on a different day with a different judge, the result can be very different because you’ll have to convince that judge.  In one of the counties where I practice, Fairfax County Virginia, we have a number of different judges and it’s surprising how different the different judges are.  You can go into court with one guy and by the way, it’s really good to know which one knows what, which one does what, and get very different results and you’ll walk out of there stunned that you got heavily punished when your friend didn’t. I remember a day that I walked into court and a good friend of mine was walking in the court with sort of swagger in his step because he knew exactly what to do on his case after all, one of his friends have been through this and it was a driving on suspended and so, he knew just what to do and just what to say.  I asked him if I could help him, and he said, “Oh, no, I got it”.  Honestly, I think he was worried that I might charge him so he declined my help.

About an hour and a half later when I was leaving court, I walked out and he was walking out at the same time and he had this stunned frightened look on his face because his license has just been suspended for 30 days and he didn’t know how he’s going to get back and forth to work.  So, I asked him what happened and he told me that he got convicted, okay. So, he is a perfect example of a guy who thought it was all going to be okay because he had a little bit of information.  I turned him around, I sent him back to the clerk’s office where he appealed the case and I told him what to do and what to say, I told him to hire me and he did.  So, on the day we went back to court, we won his case, very different result than the first time.  The first time, he thought he could do it on his own.  Second time, we got the result he wanted and we proved that we could still do it.  So, if you have somebody who did okay, good for them but that is a very bad textbook for how to do it yourself.

Rectification: That is a misconception because a lawyer cannot guarantee success.  As a matter of fact, the rules of ethics forbid an attorney from guaranteeing things which he has no power to guarantee. An attorney could be ethically punished for that sort of conduct and it’s unfair in advertising, it’s unfair to say it to clients, and there are actual Supreme Court cases, the one that came out a few years ago, called Melendez-Diaz, which said that a lawyer is duty-bound to give affective representation to his clients and when he’s in the middle of a criminal prosecution, is the very time that he needs the lawyer the most, and so if he’s getting false information from his lawyer in the form of a guarantee, then that is ineffective assistance of counsel.

The truth of the matter is a lawyer who goes to court in a typical scenario where he does not have an agreement from the prosecutor that has already been sort of soft-soled to the judge who’s already said he would agree, if it’s not in that situation, you cannot guarantee that the result is going to be what you promise.  It sounds to me more like a marketing ploy so that a client will say, “Ah, if I’m going to get this guaranteed result, then I am definitely going to go with this lawyer”.  Certainly in the criminal and traffic context, guarantees about results of the case are, I would say, unethical and that lawyer should not be — you should read between the lines because he may be lawyering you, he may be making caveats and special exceptions and the fine print may say that he’s really not guaranteeing the success; he just sounds like it just to get a sale.  So, I would say watch on that one, that is a misconception.

Rectification: That is a misconception.  Lawyers are like anything else, there are good ones and bad ones. If you’re looking for the cheapest one, what you’re actually doing is you’re looking for the one who’s going to spend less time on your case.  It’s possible that they could have less overhead but usually, the cheapest lawyer is the one who has to go cheap so that he can get people to sign up in his office.  Experience is something that people pay for. 

Background is something people pay for; credibility among the bar and before judges is all things that people pay for.  So, if you get an attorney who has years of experience and he’s well respected in the lawyer’s bar, that is going to get you brownie points in the courtroom, that’s going to get you results in the courtroom whereas the new guy, the guy who doesn’t have a track record, the guy who is the cheapest doesn’t have.

So, I can give names of cheap lawyers all day long to people who are kicking tires and looking for the cheapest lawyer.  And when I say kicking tires, I mean looking for the — just shopping for price because for a lot of these cheap attorneys, you could walk into the courtroom all by yourself and do just as good as the one who cost you next to nothing because they’re going to do next to nothing.  And so, save yourself the money, just go in and just plead guilty all by yourself but if what you really want is a good result, if what you really want is a fighting chance, if what you really want is someone who knows what they’re talking about and has your best interest at heart, then get someone who you can count up on and that’s something you’ll have to pay for. It’s sort of like buying a guitar.  You get what you pay for, if you buy a cheap guitar, it’s going to sound like crap.  If you pay for really good one, the results are going to be so much better and the sound is going to be music to your ears.  It’s like a car; you buy a great car, you’re going to get better response than if you buy a crappie one.  So, get what you need and get what — and if you have to pay more for it, pay more for it because it’ll make a difference.