How to Hire the TOP DUI-DWI Attorney for Your Case
By: William C. Head, Attorney
at Law
A conviction for drunk driving or drugged
driving can lead to financial devastation, long-term employment
problems and cataclysmic personal upheaval. A driving under
the influence arrest starts series of complex and stressful
consequences for most people, and the consequences of failing
to fight these seemingly impossible cases (and sustaining
a conviction on your criminal record) can lead to nightmarish
scenarios. It is not a surprise, therefore, that many citizens
accused of impaired driving offenses diligently search for
TOP trial attorneys who specialize in challenging the State's
charges in these life-changing criminal cases. They want
THE
BEST POSSIBLE DUI ATTORNEY.
Many questions arise: Does everyone NEED an attorney
when charged with D.W.I.? How do you select the right drinking
and driving lawyer? If I am financially unable to hire a D.U.I.
/ OWI attorney, can I get an appointed lawyer? Are public
defenders (appointed attorneys) as capable and successful
as private attorneys who are at the top of their field?
Hopefully, this article will help you to analyze
whether and why you should hire a specialist in fighting DUI
cases. Let's start at the beginning.
Do you need an attorney?
The old saying "He who represents himself has a fool
for a lawyer" applies to drunk driving law just like
it does for most other legal matters. Impaired driving law
(alcohol or drugs) is one of the most politically sensitive
areas of the American legal system. Although most DUI-DWI-OUI-OWI
cases are misdemeanor offenses, the consequences for a conviction
can often parallel or exceed some felony punishment. Hence,
handling one of these cases without legal counsel can be a
life-changing mistake.
Judges fear being defeated in political races
based on being "soft" on crime, especially driving
while intoxicated [D.W.I.] cases. Police officers are often
promoted and given favorable duty based on their "track
record" in arresting and prosecuting drunken drivers.
MADD has become a formidable political and social juggernaut
in America, and has its financial tentacles in various levels
of federal, state and local government. Many "hanging"
judges get the majority of their financial backing from M.A.D.D.
and its supporters. In large part, many police departments
and courts depend upon revenues from D.U.I. convictions to
stay afloat. Recently, legislation piling on excessive surcharges
in DUI cases has become a new source of revenue for cash-starved
state budgets in Texas, New Jersey and other states.
Therefore, it is not surprising that tremendous
financial resources from the Government have been amassed
to detect, evaluate, arrest, prosecute and punish DUI-DWI-OUI-OWI-DUII
suspects across America. Numerous branches of the federal
government are deeply involved in trying to deter and punish
DUI offenders, and every state has special agencies that are
an extension of the Governor's office that monitor progress
in the never-ending fight to thwart drunken and drugged driving
from occurring. In Georgia, this office is designated "The
Governor's Office of Highway Safety". Even some municipal
and local authorities have passed local ordinances or laws
to tack on additional punishments for offenders (such as New
York City's well-publicized effort to forfeit the DUI driver's
vehicle upon arrest and conviction.)
Additionally, DUI-DWI cases are among the
most difficult criminal law cases in the United States to
succeed in defending due to the "scientific" issues
that permeate this area of criminal practice. While a lawyer
handling a shoplifting or murder case may be able to rely
on top trial practice skills and a general knowledge of the
rules of evidence and criminal procedure, the drunk driving
specialist must be fully versed on breath testing instruments,
electronics, flaws in breath testing procedure, human physiology
and pharmacokinetics. The attorney must also be trained to
be able to understand the job of a laboratory toxicologist
when dealing with blood tests and urine tests involving drugs
or a combination of alcohol and drugs in impaired driving
cases.
Further, a body of law has evolved around
so-called "field sobriety testing" that is almost
always utilized by police officers in evaluating possibly
impaired drivers in deciding on whether to arrest the person
for D.U.I. This pseudo-science has been responsible for more
wrongful arrests and convictions than any other voodoo forensic
science in America, far surpassing erroneous, bogus eyewitness
identification arrests and convictions. The criminal attorney
handling drunk driving litigation must be knowledgeable of
"human factors" affecting such variables as stress
during physical agility testing, environmental, surface irregularities
and lighting deficiencies involving balance tests, the dynamics
of ambiguous verbal instructions, and the intricacies of psychophysical
evaluations promulgated and "validated" by NHTSA.
While books on DUI law and attorney web sites
hawking their skills in handling drunk driving defense are
ubiquitous on the Internet, it could be a grave mistake to
rely entirely upon these sources for legal advice relating
to successfully defending your D.U.I. case. All of these Internet
sites and sources of information provide copious amounts of
data and "hype" to the citizen facing a criminal
conviction and possible jail sentence, but may not in any
fashion identify a truly skilled DUI-DWI lawyer. Why? Consider
the following points:
1. These sources have no responsibility
or liability for information they provide, and typically
disclaim such responsibility in writing.
2. Many attorneys who have launched web
sites are NOT skilled in fighting DUI/DWI cases, but want
a volume DUI business to allow them to handle guilty pleas
in large numbers in order to increase their bottom line.
Often, these lawyers' practices are known as "bait-and-switch"
shops, referring to the front-end assurances of their successful
track records, "connections" within the courts,
prior prosecutorial experience and promises of fighting
a D.W.I.-D.U.I. case "tooth and nail", fighting
to the last breath in his or her body. To the utter shock
of many trusting clients, their "gladiator" later
changes to yellow-bellied skink, giving a later report of
"gloom and doom" or "I have bad news"
that ultimately leads to the lawyer pushing the accused
DUI offender into accepting a "slow GUILTY plea"
to the drunk driving or drugged driving charges. Many lawyers
in the DUI arena, unfortunately, opt for this type of practice
rather than let a jury or judge decide these cases. This
is the most dangerous and difficult to detect culprit in
the DUI defense business.
3. Seeing that a specific legal defense
in a reported appellate case or trial was successful for
another person (by reading about it in a book or on-line)
in no way prepares the average lay person (citizen) who
is untrained in law to properly raise and assert that defense
in court, much less fight a knowledgeable prosecutor in
court. Often, the winning DUI client had one of the best
lawyers in the business helping him or her. To act as your
own attorney in DUI litigation is a mismatch, plain and
simple. Much like reading a book or Internet site about
successful abdominal surgery, you would not want to slice
yourself open to try to cure your medical defect!
4. Individual case situations in DUI law
differ dramatically, and even the most hopeless looking
DWI cases can be winners, if the attorney is a specialist
in the field of "drunk driving defense" (or "DUI
defense", as it is commonly called). Conversely, even
the simplest looking D.U.I.-O.U.I.-O.W.I. prosecution with
a low alcohol test result and a roadblock arrest (i.e.,
no bad driving) can result in a conviction, especially when
a person tries to fight a legally trained attorney for the
state.
5. DUI arrests that lead to criminal convictions
can have a lifetime of reoccurring or isolated consequences
that can be devastating to the offender, including loss
of job opportunities, disqualification for public office,
restrictions on travel to other countries, disqualification
for certain positions, loss of college scholarships, being
turned down for professional schools, embarrassment in social
or business matters that could result in either termination
of employment or relationships or possibly cost the person
millions of dollars in potential income.
Even if you could manage to succeed in identifying
the legal issue that might set you free, your lack of experience
in courtroom proceedings could lead to mistakes that could
cost you a victory, thereby squandering the one chance
that you had to walk away from a DUI-DWI conviction.
If you seek to hire a lawyer after you have botched your defense,
your early mistakes will almost always limit your options
to appeal. Drunk driving defense specialists are likely to
charge more than the originally quoted fee to try to clean
up the mess.
A good drunken driving defense attorney should be able to
give you an honest and thorough assessment of your case and
be able to explain the options that are available to you based
on not only the current law, but also on potential legal changes
that are in the legislative and judicial pipeline at any given
time. Often, new legal challenges are in the process of being
pursued in the appellate courts, and ONLY a drunk driving
law specialist would know about these cutting-edge legal
attacks and be able to structure your case and its pleadings
(written motions and other maneuvers) to take advantage of
such transitions in the law of your state.
The specialist DUI-DWI lawyer can then work
with you to prepare your case and represent you at your administrative
license suspension hearing and your criminal case. In some
situations, the lawyer should be able to explain to the prosecutor
why your case deserves to be dropped or reduced to a lesser
charge. Be aware that a reduction of charges may not be "legal"
in your state, due to state law prohibiting this negotiated
plea reduction.
The drunk driving defense specialist often
has additional specialized training and knowledgeable professional
resources (e.g., expert witnesses, private investigators)
available to call upon in finding answers to these difficult
and highly politicized criminal law matters. General practice
attorneys do not have such resources available, since their
practices are not focused on winning DUI cases.
Is it significant that a lawyer calls
himself or herself a "DUI Attorney", "DWI Lawyer"
or "Drunk Driving Defense" guru?
Any person who has passed the Bar in a state can call himself
or herself a DUI or DWI Lawyer (Attorney). Since drunk driving
cases are among the most lucrative criminal matters to handle,
many legal practitioners claim to "specialize" in
this area of law in order to attract potential clients. This
in no way means that the person is necessarily proficient
at obtaining reduced charges (a non-DUI disposition) or an
acquittal of the drunk driving (or drugged driving) offenses.
The advent of legal marketing on the Internet,
multiple phone directories, radio, billboards and other media
has led to some attorneys being excellent marketers, but poor
DUI lawyers. One Atlanta attorney that I saw in the City Court
of Atlanta in September of 1993 who was a HUGE yellow page
advertiser was there to plead all 104 of his clients
guilty or nolo contendere to DUI (nolo contendere
is a form of guilty plea that still counted as a DUI conviction).
He finished all 104 cases in one day and (according to him)
pocketed more than $250,000 for his "efforts". I
had 17 files for 17 clients, and pleaded all of them "not
guilty". By contrast, only one of my 17 clients ultimately
ended up with a DUI on his/her record. It took three months
for that court to schedule all those trials for me due to
my other trials (in different courts) having priority.
This article is being offered to assist you in screening,
evaluating and possibly eliminating a candidate who is vying
to be the DWI lawyer for your case. If you merely
wish to plead guilty, this may be a legal service that you
can perform entirely on your own, without ANY attorney. Hence,
this article will focus on what questions to ask of your potential
DUI TRIAL attorney in order to determine
what legal services, if any, you will be expecting him or
her to perform on your behalf to FIGHT
the charges. If the lawyer you are considering cannot pass
the "litmus test" of being a qualified DUI specialist
(as explained in this article), you should look further for
legal help, if you plan to try to WIN your case. If you have
already hired a lawyer for your case, and you realize that
the choice you made was wrong, this article may help you understand
your options for changing lawyers.
What to look for in your lawyer
There are a number of factors to consider when hiring a drunk
driving defense lawyer. With more than 50,000 so-called criminal
defense lawyers practicing law in the USA, the process of
selecting the right lawyer can be difficult. Only about 500
lawyers in the United States are "the best" in their
geographic areas in defending drunk driving cases. Hence,
you will need to eliminate 99 avowed criminal lawyers to find
the ONE "best" attorney for your DUI case.
The following list of factors may prove helpful in making
your decision:
1. Specialized Membership or Professional Affiliations
- This is a good starting point to consider an attorney's
"involvement" and "commitment" to the
field of DUI defense. What specialized professional membership
standing does he or she maintain? Although these memberships
are often only a matter of paying certain periodic fees and
being admitted as an attorney in some state, affiliation may
be indicative of the attorney's dedication to the field of
DUI defense. Also, within certain organizations, lower levels
of membership are more a matter of paying the fee, while the
top attorneys are often found in special "founding member",
"life member" or similar "special status"
categories.
In the DUI defense field, here are some places
to examine to determine "proficiency":
a. NCDD.com - National College for
DUI Defense, Inc. - The Regents and Fellows (retired Regents)
are attorneys with an average of 25 years' experience who
have been invited to join the highest ranks of attorneys.
The 100 Founding Members (all Regents were Founding
Members) and the later-admitted Sustaining
Members are eligible to become a Regent. Sustaining
Members must be "recommended" for inclusion within
the Sustaining Member echelon by at least a Regent and then
"voted in" by the Regents. Generally, the Regents
defer to the Regent or Fellow (former Dean of the College)
from the proposed Sustaining Member's state for a "thumbs
up", or not. This group (NCDD) now offers Board
Certification of members who are able to pass a grueling
written and oral exam about breath testing, human physiology,
field sobriety testing, criminal procedure and the rules
of evidence. The regular members are licensed
attorneys who pay the regular member's annual dues, and
may be among the best lawyers in their state or may not
be among the best in their state. Paying the annual assessment
obtains this "regular member" status and proves
nothing more than that. Look further for other indicia of
"skill" versus merely joining a group that may
give the DWI defender a web link or visible credential.
b. NACDL.org - The National Association
of Criminal Defense Lawyers - For more than 40 years, the
leading national directory of CRIMINAL DEFENSE ATTORNEYS
in America. Notice that this covers ALL criminal
defense - federal, state, tribal and both felonies and misdemeanors.
Many lawyers in this great organization are fine DUI-DWI-OUI-OWI
defense specialists, while others take no DUI cases at all.
Life Membership signifies dedication to the field
of criminal defense, but does not necessarily identify skill
level in fighting DUI cases. Dig deeper, and look for other
indicia of dedication to this field.
c. State NACDL affiliates - Many
states and even a few large metropolitan cities have formed
local affiliate branches of the NACDL. See list at this
link. I am a "Life" member of both the GACDL.org
and the SCACDL.org (Georgia's and South Carolina's
state affiliates). However, I have successfully handled
thousands of DUI cases in Georgia since passing the Bar
in 1976, and NONE in South Carolina, despite passing the
Bar in that state in 1990. I merely joined the South Carolina
organization and helped fund its start-up out of a sense
of loyalty to the exceptional DUI lawyers in that state
who invited me to assist in forming the original Founding
Members' seed group in June of 1992. The first SCACDL president
was my co-author of "101 Ways to Avoid a Drunk Driving
Conviction", Reese I. Joye of North Charleston, SC,
clearly the top DUI lawyer in that state. Certainly, the
Life Members or Founding Members of such state
organizations are typically among the best in that state.
d. Martindale.com
- Martindale-Hubbell is the oldest and most widely respected
directory of attorneys in America. Their rating of "AV"
and/or their Pre-Eminent Lawyers designation
signifies excellent reputation and credentials. See the
description of these classifications at
this link, or explanation of the "av", "bv" and "cv"
ratings at
this link. These designations of attorney quality
alone do not mean proficiency in handling DUI cases, but
often identify members of the Bar in your state who are
deemed by their peers to be among the most ethical and elite
in your state.
This link permits search of a lawyer's page. I found my
personal page at
this link. Martindale-Hubbell gives you a good bit of
information, including the name of the attorney's law school
(see Number 14 below, as to why this matters).
e.
Advanced Training. After finding that your
attorney fits one of these designations, search further within
the Internet profiles of the attorneys you are
considering to confirm that he or she is a specialist in
"drunk driving defense".
The most highly trained D.U.I. lawyers have attended several
of the following specialized courses:
i. NHTSA Standardized Field Sobriety Test (Student or
"Practitioner" Course) - This is a 20 to 24 hour course that
teaches the attorney how field tests are SUPPOSED to be
done, so that errors can be discovered and used to impeach
the officer's testimony in court. Most DUI Task Force
officers have taken this course, at a minimum.
ii. NHTSA Standardized Field Sobriety Test (Instructor
Course) - This is the NEXT level of training for serious
D.W.I. defense attorneys. This training consists of 32 to
40 hours, and teaches the defense lawyer what the INSTRUCTOR
teaches the police office students within his/her classes.
This course has extensive written and video/DVD materials,
and requires each person attending to practice instructing
the course.
iii. Breath Instrument Training Courses - There are several
of these available, with only one "factory" (BAC Datamaster)
permitting regular courses for attorneys to attend. All
other factories fear allowing criminal defense lawyers to
attend the courses and block direct purchases of breath
instruments of their breath machines because they fear that
the flaws and limitations of the machines will be uncovered
and disclosed. The best training is a 32 to 40 hour course
that covers the pharmacokinetics of alcohol, basic human
physiology in the absorption and elimination of alcohol, the
electronic components of the machine, the scientific
principles upon which the machines function, shortcomings or
limitations in the specificity of the devices, analysis of
computer downloads and similar training. A good course
requires extensive "hands on" laboratory work where the
students are required to set up and connect all parts of the
instrument (directly out of the packing box), connect and
fill the simulator and run calibration tests, opening the
cover of the machines to observe and identify the various
parts (i.e., chopper motor, light source, solenoids, RFI
detectors, etc.). This training meets of exceeds the
training that most state "supervisors" receive. The
National Safety Council set standards for breath instrument
training in the late 1980s, and these standards are still
our best standards today.
iv. DRE (or DRT) Overview Course - The latest training for
police officers (almost 100% of whom were originally trained
as DUI Task Force officers) is the Drug Recognition
Technician (DRT). The acronym "DRE" stands for "drug
recognition expert", a title that officers eagerly boast
about. The officers are provided extensive training
including time at hospitals where they observe symptoms of
patients who are known to be under the influence of drugs.
Lawyers are not permitted to take the OFFICIAL course, but
there are training courses designed especially for DUI-DWI
attorneys to attend whereby DRE-trained, ex-police officers
disclosed the PROPER and complete training methodology and
expose how officers misuse this training by misstating the
criteria and protocols required in conducting a proper DRE
evaluation. These courses are 20 to 32 hours in length, and
demonstrate the same "steps" that officers must complete to
be able to fully analyze a suspected DUI-drugs suspect for
possible impairment.
v. Blood and Urine Training - Only one of these courses has
been taught so far in the USA. This course focuses on flaws
in crime laboratory blood and urine testing procedures and
testing methodology. A 24 to 32 hour course is required to
identify these testing inadequacies and to explain the
scientific and electronic components of blood testing by gas
chromatography (for alcohol) or GC-MS methods (for drugs
other than alcohol). Urine testing is also covered
extensively, for such drug screening tests as immunoassay
screens, marijuana identification, etc. Attorneys who
handle DUI-accident cases, including vehicular homicide
cases need this training to be able to challenge the "junk
science" and sloppy laboratory work done at many state
laboratories.
f. Seminar Speaker
- The top attorneys in each state are asked to speak for
DUI-DWI-OUI-OWI seminars in their state and others. Being a
regular invited speaker for several consecutive years is
generally a great indicator of "quality" of the attorney. Be
sure to distinguish between "invited" speaking engagements
versus self-promoting seminars. Ask about this "indicator"
from any D.U.I / D.W.I. attorney that you are considering
hiring.
One final note: Although
it would be highly unlikely that any attorney could be highly
regarded or rated in ALL of these types of professional
organizations and services and not be a top-notch DUI defender,
it is possible. Starting with candidates who have membership
in as many of these legal organizations as possible will most
likely lead you to one of the best DUI attorneys
in America. On the other hand, it is possible that a skilled
and successful DUI-DWI attorney COULD be a member of NONE
of these groups or organizations, but I would be highly skeptical
of such claims.
2. Community and Courthouse Reputation
- This may be the very best measuring stick
that anyone can use to judge an attorney's "skill level".
It best identifies whether the lawyer has established a good
name for himself or herself as a "winner" in the
legal community where your case is pending. If your attorney
has a sterling reputation within the legal community where
your case is pending, chances are it was earned through hard
work. Having a great COURTHOUSE reputation is
more difficult than having a stellar community reputation.
Checking the attorney's COURTHOUSE
reputation is the most direct and accurate litmus test of
the GREAT drunk driving defense attorneys.
Once you know the courtroom you will be assigned to and the
name of the judge handling your case, go to that judge's court
BEFORE your court date. Sit and watch
what occurs in court. After the judge recesses for a break,
try to speak to the court personnel near the front of the
courtroom. Ask a bailiff or the court reporter or the calendar
clerk or the deputy overseeing the courtroom WHICH one of
the lawyers that you are considering would he or she hire
if they were facing a DUI prosecution and HAD TO TAKE A SHOT
AT WINNING. Be sure to give them names, because they may be
hesitant to "recommend" any one attorney or law
firm. Also, the prosecuting attorneys may or may not give
you an earnest opinion. Unless a prosecutor is a personal
friend, with your best interest at heart, do not rely on prosecutor
recommendation. Many of them will try to steer you away from
the hell-bent DUI trial attorneys, to ease their work load.
Go with a person from the clerk of court's office, a bailiff,
a deputy who is assigned to that Court or the court reporter.
Another good source for a referral is law enforcement
officers who regularly face these lawyers in court,
and will tell you their honest opinion.
3. Disciplinary Actions - Has the attorney
ever been disciplined by the Board of Professional Responsibility
of the State bar of his/her practice location? This is an
obvious sign of problems. Also, some people falsely claim
to be licensed attorneys, so be careful. The state Bar is
also the place to check that the attorney is licensed and
in good standing. Call your state Bar to see if your lawyer
is in "good standing". Here is an American Bar Association
map with links to all state Bar associations, to make your
job easier visit this
link.
4. Fees and Fee Structure - How does the attorney
set his or her fees? Most drunken driving lawyers work on
a flat fee basis, though in some matters, hourly
billing or staged billing (triggered by the progress of the
case through court) may be done. Criminal matters cannot be
handled on a "contingency" basis, due to Bar rules
prohibiting this practice. Highly experienced attorneys often
charge much higher fees than younger, less experienced
lawyers. Often, these high fees are derived from market-driven
"supply and demand" pressures, but more likely are
a natural function of the free enterprise system. Additionally,
a lawyer who fights each case cannot take the volume of cases
handled by a "pleader" because trials and contested
cases typically require 20 times as much legal time (or more)
as handling a guilty plea. Thus, a GOOD trial lawyer typically
will limit his or her caseload in order to do an excellent
job for each client thoroughly and meticulously. If an attorney
prices himself or herself much higher than MOST other DUI
lawyers in the area, then do not hesitate to ask why. Don't
be accusatory---just ask what distinguishes this lawyer from
the other candidates you are considering who charge less.
Conversely, a low fee quote usually means that you will get
exactly what you paid for. One friend from Louisiana, Glynn
Delatte, ends each e-mail with this maxim: "Good lawyers
aren't cheap, and cheap lawyers aren't good." Seriously,
the lawyer who quotes a "low ball" fee may not have
any idea how much work is really involved in properly handling
the case, or this attorney just may be desperate for money.
More likely, he or she is planning to do very little work
and later enter a guilty plea for your case unless the State's
case just falls apart and cannot be prosecuted. Trial for
such "pleader" attorneys is out of the question.
The lawyer who quotes a low fee may also be able to price
the services this way because the work is being pushed down
to the level of a legal assistant or very junior associate.
The great DUI lawyers typically charge more, and always do
the critical legal work (pre-trial motions and trials) themselves.
Comparison shopping may serve a valuable purpose, but if you
are looking for the attorney who can BEST handle your DUI
successfully, the "pool" of super lawyers is often
very small in every community. In smaller cities, you may
need to go to a suburban or larger metro area attorney to
find a quality fighter. However, for many persons facing the
extreme penalties of a DUI-DWI conviction, price is secondary
to results.
5. Client references - A strong reference from
a friend or colleague who has used the potential DUI defender
is often the best indicator of whether a lawyer is worthy
of hiring. Be sure, however, that the friend or colleague
has seen the attorney's skill in court versus merely winning
by default or pleading guilty for the friend. Often, attorneys
in your "market area'" who do NOT handle criminal
cases will know the names of several top DUI attorneys. Interview
several, to see where you are the most comfortable.
6. Focus of practice - Most truly great DUI attorneys
either restrict their cases to drunk driving (and drugged
driving) or stay entirely within the field of criminal law.
Some of these attorneys work within law firms that handle
other matters, but the DUI specialist does nothing but drunk
driving litigation. If the attorney that you are considering
spends less than 80% of his or her legal time on criminal
law, look further for an attorney. Consider limiting your
search for an attorney to a criminal defense lawyer with a
strong background or emphasis in DUI/DWI defense. Watch out
for firms that sign you up with "any available"
lawyers in the firm versus the top dog in the firm. If you
pay premium dollars, this should be the lawyer handling your
DUI trial and (generally) the DUI pre-trial motions. Other
appearances can be handled by other attorneys who assist the
DUI specialist, or possibly even "waived" (pre-filed
and no appearance in court on the court date necessary).
7. Drunk Driving Specialists - Nationally, only a few
attorneys work 100% within the DUI field. However, some are
primarily "pleaders" who are not TRIAL SPECIALISTS.
The lawyer who call himself or herself "DUI attorney",
yet has not tried any cases (or only a couple)
in the past 12 months are either pleading guilty a great deal
or not handling very many cases. Ask questions about why no
trials have been conducted. Even though I limit the cases
I accept to contested DUI cases, about 65% to 70% of all the
drinking and driving cases I take are resolved by a reduced
plea (a non-DUI disposition such as reckless driving
or "lane violation") that are clear "victories"
in my state. This means no loss of driving privileges, no
DUI on the criminal record of my client, and a very "favorable"
outcome for the person. Plus, the client does not have to
risk trial and possible harsher punishment after trial. In
other states (e.g., California) getting a case reduced to
reckless driving (versus the original charge of DUI) is NOT
a "victory" if it is a "wet reckless"
(defined as an alcohol-based original charge that gets reduced
to an alcohol-based reduction), due to the penalties and license
implications of such a plea. Also ask the attorney about a
percentage of ALL DUI cases that he or she handled in which
the clients ultimately ended up with a favorable non-DUI disposition
(on all the DUI counts, not just the common
law count or just the "per se DUI" charge).
8. Years in Practice - There is no substitute for experience.
This rule is true in both warfare and in criminal trial practice.
The longer one is involved in an active trial practice, the
better one's litigation instincts generally become. But, the
opposite can be true as well. Some lawyers who have been practicing
for years may become lazy about staying up to date on the
latest legal changes and trial strategies. Missing a key,
late-breaking appellate decision can allow a high breath or
blood test into evidence when it SHOULD be excluded
based on some new legal attack. Some of the worst lawyers
practicing DUI law in this country are the ones who have been
around the longest and have quit following current case law
or stopped learning the newest and most advanced techniques
for winning. So, look at the candidates' RECENT advanced DUI-DWI-OWI-DUII-OUI
law training and seminar attendance record.
9. Lawyer-Paralegal ratio - A busy, experienced DWI-DUI
trial attorney will have 1 to 2 paralegals assisting him/her.
Trial preparation requires more time than processing guilty
pleas. A knowledgeable paralegal is worth his or her weight
in gold. Our paralegals are like the HUB of a wheel, and
assign tasks and responsibilities to many other support staffers,
such as couriers, process servers, investigators and law clerks.
The paralegals also coordinate the attorney's schedule. Most
paralegals also organize our files for motion hearings or
trial. An attorney who maintains a more modest ratio of one
to two paralegals per attorney may mean that the firm is not
too overloaded with work and it may mean that the attorney
you thought you were hiring actually knows what is happening
on your case and has the time to speak with you about your
case. However, a truly skilled trial lawyer relies on the
trained paralegals to handle all routine inquiries in order
to keep him or her in court trying to negotiate
or win DUI cases.
10. Caseload - Is your lawyer taking on so much work
that there is no way cases can properly be handled? Too many
lawyers don't know when to draw the line and either say no
to taking on additional work or to make the decision to take
on more attorneys and staff. A trial attorney may limit his
or her caseload to between 40 and 100 cases per year, depending
on these factors:
(1) What percentage must go to trial. In
some states (e.g. Oregon and Kentucky), the prosecutor is
legally barred from offering to reduce a DUII (DWI). In
Georgia, I get about 65% to 70% of my cases resolved by
non-DUI dispositions each year, without having to complete
trials in each case. The fee charged is earned by the "win",
despite the case not having to go through a two or three
day trial.
(2) Can the case be resolved at a non-jury
trial or pre-trial motion hearing?
In some states, the "first level" of trial in
any traffic law case is a non-jury trial. In states such
as Mississippi, Arkansas and Virginia, if the first trial
is lost, a completely NEW trial can be pursued at the next
level. In most states, however, this stage of a DUI case
is relegated to pre-trial motions hearings, and a successful
hearing can result in a victory or force the prosecutor
to "cut a deal" for a non-DWI disposition. Lawyers
who are successful at winning bench trials and pre-trial
motions can handle a larger number of cases because DUI
jury trials require 3 to 6 times the hours (or more) to
resolve.
11. Use of Technology - Technology
has revolutionized the practice of DUI-DWI law probably as
much as any other area in the legal profession. Does your
attorney not only USE e-mail, but encourage its utilization
by you? Does the attorney have the latest legal research and
case management software? Does the attorney provide electronic
newsletters and e-mail alerts to inform clients of breaking
news about DUI and criminal law matters? Does the firm have
an extranet (or a quick response e-mail plan) that allows
you to log in to a private and secure web site to see what
is happening on your case? Does the lawyer participate in
state or national list servers or blogs? Lawyers who master
technology deliver legal services with better quality and
can often leverage technology to deliver legal services less
expensively. Additionally, miscues such as missing a court
date will typically be minimized by utilizing case management
software.
12. Communication - The number one complaint
against lawyers in this country is not poor work quality.
It is failing to communicate with their clients. You are paying
a lot of money to hire a lawyer and it is your right to expect
to be kept informed of developments and have your calls and
e-mails returned in a timely manner. Please note that this
does NOT mean that the client and attorney's firm communicate
daily. Busy trial attorneys cannot do that. There is such
a thing as anxiety or excessive inquiries on the part of a
few clients. Calling your lawyer every day to find out what
is happening on your case is not "communication."
It is a sign of extreme anxiety that may dictate a mental
health evaluation and treatment for the stress that these
difficult cases may cause.
13. Board Certified - As mentioned in Paragraph 1,
the National College for DUI Defense (NCDD) now offers a national
certification for DUI specialists. Of course, your attorney's
state may or may not allow lawyers within that state to broadcast
or "advertise" such certification. A few states
certify lawyers in the area of criminal law (as
opposed to "DUI defense"). If your lawyer practices
in a state that does permit certification, ask whether he
or she has obtained this credential. It may be a desirable
designation in some states (i.e., in Texas, most criminal
attorneys who specialize do NOT seek this Texas bar credentialing)
due to the manner that it restricts the practitioner or exposes
him/her to additional liability. Board certification is no
guarantee of quality, but it can certainly be an indicator
of expertise, especially if obtained from NCDD.
14. Educational Background - While many fine lawyers
have come out of mediocre or unaccredited law schools and
many lousy lawyers come out of the Ivy League law schools,
where a lawyer went to law school can still
be an indicator of a person's ability to regularly achieve
trial success. Most of America's top law firms acknowledge
that the best law schools are "ABA-approved." This
means that a branch of the American Bar Association has investigated
the law school thoroughly for quality on dozens of "measuring
sticks". For a complete list, please go to the ABA web
site to look up your attorney's law school at this
link.
15. Publications - Lawyers who write frequently about
their area of law practice tend to keep themselves better
informed about their area of specialty. The ability to get
published in legal magazines or DUI trade journals is a good
barometer of the lawyer's expertise. Writing the "book"
on DUI law in the state where you were arrested is generally
a great indicator or an advanced level of knowledge and expertise.
16. Promotional Materials - Pay attention to a law
firm's client information package, marketing, Internet and
promotional materials. Are they professional and polished
or do they give the appearance of being "fly-by-night"?
How the firm and its staff presents itself to its clients
and potential clients may be an indicator of how the firm
will present itself - and, consequently, you - in court.
17. Conflicts of Interest - Some DUI defense lawyers
may also act as part-time prosecutors in one or more inferior
(small courts of limited jurisdiction). Some may even act
as a part-time judge in an inferior court. An attorney cannot
act as a defense attorney in the same court, however. These
lawyers typically will screen any potential "conflicts"
and never see any potential clients with cases pending in
their courts. Usually, such conflicts are not a problem. But
be careful to pay attention to this fact if the lawyer does
not immediately "step out" of discussing ANY ASPECT
of a case pending in his or her "court."
18. Sub-specialization within the DUI Field
- A number of "drunk driving defense lawyers" focus
on particular types of matters within the DUI-DWI arena. For
example, some lawyers only handle administrative license suspension
or administrative license revocation matters. They never go
to DUI criminal trials or pre-trial motions in criminal cases.
Other criminal attorneys may only handle appeals of criminal
law cases, including DUI-DWI appeals.
19. Personality Compatibility - Your
interaction with your DUI-DWI lawyer in evaluating compatibility
with your goals should be more than just an analysis of the
lawyer's experience and competency. At the end of the day,
a lawyer's "bedside manner" can mean a lot to how
the overall relationship goes. Some clients are especially
"on edge" and need more nurturing, due to the stress
that a DUI puts them under. Others merely want the attorney
they hire to be a gladiator and go slay the dragon for them,
and need no nurturing at all. Find a lawyer who really cares
about winning, and be realistic about your level of need in
being "nurtured" (or not being nurtured) by the
attorney. Since 90% or more of your communications will be
with the attorney's staff, their supportiveness and attitude
is also very important. Difficult or uncaring staff members
are not being "team players" for your cause. However,
you must not constantly call the staff to ask for an update,
when the progress of the case may be slow and somewhat plodding.
20. Promising too much - There are actually DUI lawyers
out there who swear they have never lost a case even after
a lengthy trial career. Be skeptical about lawyers who
promise success. An old wag among experienced DUI
trial lawyers is "Show me a DUI lawyer who has never
lost a DUI case, and I'll show you a lawyer who has never
TRIED DUI cases." A lawyer who honestly
presents the real risks and perils of trial without trying
to talk you into an ill-advised plea of guilty is what you
seek. Likewise, be very wary of attorneys who claim to have
special influence or "standing" with the judge or
prosecutor in your case. An attorney who spends more time
"name-dropping" impressive political or judicial
names than explaining the favorable aspects of your case should
be avoided like the plague! Also beware of lawyers who speak
too negatively about his or her competitors. If the lawyer
is worthy, he or she can stand on his or her own track record
and reputation rather than tearing down the record of qualified
competitors. When you have your quest narrowed down to 2 or
3 potential attorneys who all seem to have the right credentials,
go back to Number 2 above, and go to the COURTHOUSE for "the
final answer".
21. Engagement Letters - Read the fine print in your
engagement letters or "fee agreements." Some lawyers
load agreements down with so much "legalese" and
one-sided provisions that such agreements should give you
pause. Consider using a lawyer who provides an agreement that
is written in plain English that appears to be even-handed.
Also make certain that you know what costs (beyond the fees)
are your costs to pay and whether any appeals or potential
re-trials (after a mistrial or "hung" jury) require
additional fees.
22. Language Skills - Some clients
who are not native English speakers may feel more comfortable
working with a lawyer fluent in their language. A skilled
DUI trial attorney who does not speak your language should
have staff members available to translate or telephone-based
translation services. In trial, courts must provide translation
services available.
23. Ethics - Run as fast as you can from lawyers that
tell you it is okay to lie or otherwise act dishonestly in
your case. Aside from the obvious questions of ethics, professionalism
and morality, you are risking jail time for any complicity
in such shenanigans. The attorney is risking disbarment, jail
time and potential civil litigation by suggesting this. RUN
AWAY! It is not worth such aggravation and potential increased
legal problems.
24. Appellate History - Has your attorney
pursued any DUI-related appeals? If so, get the names of at
least 5 significant appeals he or she has handled. Ask for
a total number of appeals handled. DUI trial lawyers will
often handle an average of 1 or 2 appeals per year of practice.
So, a DUI lawyer in practice 20 years should have 20 to 40
appeals. Be aware that some TRIAL lawyers "farm out"
all appeals to specialists, so be sure to ask for a list of
cases of this type that were appealed by another appellate
law specialist.
What do I do if I just cannot afford the TOP DUI lawyer
in my area?
Many people will not be able to afford the top DUI/DWI lawyer
in their area due to cost. There are options that will allow
you to utilize the services of a skilled drunk driving attorney.
Many lawyers who are excellent at fighting these difficult
cases are partners or associates in the firm
headed up by the top attorney in your market. Many of these
attorneys have track records that are similar to the top DUI
lawyer's record, because these attorneys obtain advanced training,
share information about trial strategy, defenses to tests
and field evaluations, expert witnesses, judges' tendencies,
prosecutors' weaknesses and police officers' lack of training
or other problems. Why not hire a partner or associate for
half or less of the fee set by the TOP DUI attorney?
Keep in mind that you may need to be screened
by the public defender or similar organization handling indigent
cases, if your financial resources are low. You will usually
be screened extensively by your judge or his/her staff to
determine whether you truly are unable to pay a fee.
Many lawyers may offer to "unbundle" their legal
services and may offer "a la carte" legal work.
In DUI/DWI practice, the first fee set may be for handling
the ALS (ALR) administrative license suspension-revocation
hearing. This is NOT a criminal matter, but is a related "civil"
proceeding that determines whether you can continue to drive,
operate on a restricted license, or not drive at all. This
means that instead of the attorney handling a case from beginning
to end, some attorneys will work on specific aspects of the
case or simply provide the client with the lawyer's expertise
or oversight. Depending on local practice in your area, this
may be a reasonably safe plan or could be disastrous.
The opposite of this practice of "unbundling"
is the super lawyer who limits the number of cases he/she
takes. In doing so, these attorneys may offer a flat, non-negotiable
fee. If a client hires a TOP DUI attorney on this basis, relying
upon a stellar "track record" at either winning
DUI cases or getting charges reduced, the fee is a "results-driven"
transaction where the attorney is committing to dedicating
one of his or her time "slots" and his/her expertise
in exchange for the agreed fee --- paid in full. If you hire
such a specialist, be comfortable expending the fee quoted,
or look for a less expensive alternative.
What to do if your lawyer mismanages your case?
Unfortunately, the question of what to do when you have hired
an ineffective DUI lawyer is more than just theoretical for
many. The answer about how to proceed largely depends on the
facts of your case. First, determine whether the problem is
really the lawyer's fault. In many cases, people complain
that their lawyers are ineffective when, in fact, the problems
are beyond the lawyer's control. One common example is where
the police videotape is so damning that the attorney has little
chance of success at trial. Some cases are lost by what the
client says or does on video.
If your lawyer really has botched the case (or some aspect
of the case) but you think the mistake is honest and does
not reflect deeper problems relating to competency, it may
be easier to work with the lawyer in resolving the matter
than in just switching to a new law firm. If you question
the competency of your DUI lawyer, you may want to get a second
opinion from another attorney. Request this opinion from an
attorney who is NOT a candidate to become your
attorney and who has no business or personal CONNECTION to
the existing lawyer.
Don't be shocked if a possible "substitute"
attorney will not consider taking your case. Busy specialists,
especially the TOP attorneys, don't want to inherit a "mess"
created by another attorney on your case. Also, people who
switch lawyers are sometimes "problem clients."
Many people simply have a negative mindset and will never
be satisfied with their lawyers. While many people have legitimate
reasons to change lawyers, you really want to avoid appearing
to be fickle or portray a "troublemaker" image,
so make sure you choose carefully the first time.
If your lawyer grossly mismanages your case, you have two
remedies. You can file a complaint with the board of professional
responsibility for the State Bar that licenses your attorney.
And you also have the option of suing the attorney for legal
malpractice. These remedies are of little use if you have
lost your case and have a DUI conviction on your record.
At the end of the day, making yourself
an educated consumer of legal services will
improve your chance for your case to be managed successfully.
That means learning as much as you can about drunk driving
law so that you can work with your attorney to seek to achieve
the best solution possible for your DUI case. It also will
help you make sure that you are hiring a lawyer that really
is a TOP specialist in this complex area of law.
---
Disclaimer: This article is provided as a public service
and not intended to establish an attorney-client relationship.
Any reliance on information contained herein is taken at your
own risk.
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