Five Myths About Defending Accused Drunk Drivers
by William C. Head
Reprinted with permission of TRIAL (March 1993)
Copyright the Association of Trial Lawyers of America
Almost every attorney is at one time or another confronted with a client, friend, or family member
charged with drunk driving. Because accused drunk drivers are immediately
charged with a crime, drunk driving cases represent the single largest
category of criminal infractions of all reported cases, with about 200,000
more cases processed each year than all theft and larceny offenses combined.1
Even attorneys who do not generally handle criminal matters are routinely
asked how an accused person should proceed in a drunk driving case.
In the 1960s, driving under
the influence of alcohol was considered a minor offense, leading to modest
fines; in the 1990s, it is considered the most serious misdemeanor offense.
In several states, repeat offenders are considered felons.
Nearly 2 million drunk driving
cases are filed by law enforcement officers around the country every year.2
These cases take up a large portion of the criminal docket of most court
systems. Because the penalties for drunk driving have increased, many
of those charged with this crime now must seriously consider alternatives
to pleading guilty or nolo contendere. For the rest of the 1990s,
the absence of palatable alternatives for the accused driver will lead
to a dramatic increase in these trials.
Most attorneys harbor many
myths and misconceptions about this offense. These can lead to malpractice.
In this article, I will address five myths about defending accused drunk
Myth Number 1: Most
people accused of this crime are guilty.
This is perhaps the most troubling
myth-one harbored by attorneys and the general public. In my opinion,
an attorney who believes this should never represent a person accused
of drunk driving. That mindset can eliminate objectivity.
In the overwhelming majority
of drunk driving cases in which a chemical test is obtained by police,
an infrared breath analysis machine is used, not a blood test.3
This primary evidence is vulnerable to attack by a skillful practitioner.
Most attorneys have no idea
how woefully inadequate infrared breath machine are as evidence-gathering
devices. These machines are so unsophisticated that virtually no scientist
would ever trust the results as a basis for scholarly research or scientific
investigation. Yet attorneys assume that since the state has approved
the machine, its accuracy and reliability are not subject to challenge.
There are at least 30 ways
to rebut the evidence from these machines if the attorney understands
how the machines work, what causes them to malfunction, and that they
are nonspecific for alcohol.4 Without doing exhaustive research,
no attorney would understand their internal workings enough to cross-examine
the state's witnesses effectively on their alleged accuracy.
The "opinion" evidence
gathered by police officers typically consists of field or roadside sobriety
tests. These agility tests are supposed to indicate that the person suspected
of drunk driving was actually impaired or in some way "a less safe
Recent scholarly studies have
shown that field sobriety tests are not given uniformly, there is no scientific
basis for assuming they are valid, and most officers either require the
wrong tests or improperly instruct the suspect on how to perform the tests.5
A defense attorney can obtain a pre-trial ruling that the tests and their
alleged indication of impairment must be excluded from evidence due to
lack of scientific foundation and faulty instructions.
Any other "observation"
evidence from a police officer will generally be inconclusive and subject
to many interpretations by experts. For example, bloodshot eyes can be
caused by conditions other than drunkenness, including contact lenses,
allergies, or lack of sleep. The defense attorney should analyze the evidence
that will likely be presented and take the time to investigate the medical
background of clients and the environmental contaminants they have been
exposed to. Most alleged evidence of intoxication can be neutralized or
eliminated from the state's presentation with findings from this investigation.
The defense should leave no
stone unturned. These cases require detailed investigation, as does a
complex murder case that involves fiber evidence, ballistics tests, or
other intricate issues. Attorneys who do not investigate thoroughly and
defend the client aggressively do the client a disservice and expose themselves
to possible liability. In addition, they harm the legal profession by
failing to fully represent the client.
Myth Number 2: Drunk
driving is a minor offense.
Many veteran attorneys remember
when drunk driving convictions led to fines of $50 to $150, with no suspension
of driving privileges and no penalties beyond going to court, paying the
fine, and being chastised by the judge. Those days are gone.
One reason some attorneys still
do not give proper consideration to these cases is that their only contact
with the client occurs when they enter the plea. The attorney doesn't
experience the penalties that later befall the client.
A client accused of drunk driving
deserves to be represented zealously because an unjustified conviction
will have repercussions lasting for the rest of the client's life. Not
all the "penalties" for these convictions are legal in nature.
The stigma of a conviction
can exact a severe psychological toll.
A substantial number of drivers
whose licenses are suspended continue to drive.6 Typically,
they do so to provide for themselves and their families, despite the possibility
of being jailed for driving with a suspended license. A surprising number
are never caught. Yet, they live in terror of being stopped at a license
check or a roadside sobriety checkpoint. Those unjustly convicted should
not have to live with this hardship.
Most of those convicted also
suffer serious financial and social consequences. In most states, a drunk
driving conviction can never be removed from a driving record, so convicted
offenders must endure the consequences of their convictions for the rest
of their lives.
Some blame themselves, because
they know that they had something to drink before they were stopped by
the police. However, it is not illegal for adults to drive after drinking
alcoholic beverages in any state. The crime of drunk driving occurs only
when the person's blood alcohol level has exceeded the arbitrary numerical
standard set by the state, or when the person has demonstrated bad driving
that can be causally connected to impairment due to a high blood alcohol
Most attorneys would cringe
at the thought that they might have poorly represented a client on a civil
matter and that the substandard representation could come back to haunt
them. Malpractice in drunk driving cases carries the same potential for
litigation, except that most convicted drivers don't realize that their
attorneys may not have properly represented them when advising them to
plead guilty or nolo contendere without first checking into the
facts of the case. The client doesn't know whether the state's case was
validly made or based on an illegal stop. The client is not familiar with
the many ways that breath machines may be inaccurate. That is why people
need attorneys in the first place-to investigate the case thoroughly and
recommend the best alternative.
Myth Number 3: Any
attorney can defend an accused drunk driver.
If a friend or relative asked
me for help on a matter involving antitrust litigation, my response would
be to consult an expert in the field. I would probably inquire with the
state bar association or phone colleagues to try to locate an expert in
antitrust law. I would try to send the client to the most skilled lawyer
I could find who specializes in this area of practice.
When a prospective client walks
into the average law office and asks for help on a drunk driving case,
some attorneys will agree to represent that person even if they have never
handled criminal matters. The attorney may advise the person to plead
guilty or nolo contendere (depending on state law) and work out
an arrangement with the court to keep his or her license with the least
possible suspension time. The attorney may not adequately investigate
the facts of the case or get copies of documents and other evidence that
are readily available through discovery.
These naive attorneys don't
realize how much exposure to liability they have if they counsel clients
to give up their constitutional and statutory rights and plead guilty
to this serious offense. Yet these same attorneys would probably not hesitate
to refer these same clients to specialists if they were charged with securities
Some clients discover the folly
of their plea before the statute of limitations on their potential malpractice
claim against their former attorney expires. A suit for malpractice may
be the only way they can hope to achieve some semblance of recovery for
the devastating effects of a drunk-driving conviction.
After a conviction, these clients
soon learn what most drunk driving specialists already know: The penalties
are not only serious, but like the Energizer bunny in the TV ads, they
keep going and going and going. Consequences like license suspension,
fines, community service, probation, mandatory counseling or alcohol treatment,
and possible incarceration (even for first offenders) are well known.
These cases also carry a plethora of other consequences that will confront
the convicted driver days, months, or even years after.
For example, in most states
insurance rates for convicted drunk drivers will increase 500 percent
to 1,000 percent above the premiums paid before the conviction (if coverage
isn't canceled).7 In South Carolina, a person with a five-year-old
car carrying only liability coverage can expect to pay $10,000 to $11,000
in additional premiums over the first three years after a first offense
drunk driving conviction.8
This increase in insurance
costs is well known. But many attorneys are unaware that most credit bureaus
now include drunk driving convictions on credit reports. This not only
will affect future credit, but it may also prevent convicted drivers from
getting jobs where the prospective employer runs a credit check in processing
job applications. A drunk driving conviction may bar or restrict employment
alternatives with a significant segment of the job market.9
Other penalties have been imposed
on defendants in different states. They include the following:
- College students charged
with or convicted of drunk driving have been suspended from school for
at least one semester or one quarter.10
- Recipients of unemployment
benefits who have drunk-driving convictions have had their benefits
- Those in military service
who are charged with or convicted of drunk driving offenses can be summarily
discharged or required to take extensive alcohol education courses,
restricted to military bases, deprived of normal base privileges, or
saddled with other forms of punishment.12
- Professionals (like attorneys
and judges) may be disciplined by their professional regulatory authorities.13
Many people wrongly convicted
of drunk driving need not passively suffer these consequences. Relief
may be as close as the nearest attorney who handles legal malpractice
cases. Any judge or jury will sympathize with former trusting clients
who can show that they lost jobs or homes and suffered other serious penalties
as a result of a conviction that should never have occurred.
Myth Number 4: These cases can't be won.
This is the most prevalent
myth about these cases. Not only do members of the general public believe
this; so do many attorneys. In fact. experienced drunk driving defense
lawyers "win" most cases of first offenders when there is no
evidence of a wreck or other manifest bad driving.
The term "win" is
in quotation marks here because winning may mean having the charge reduced
to a different offense or otherwise obtaining a plea bargain that avoids
a conviction. The availability of alternative plea arrangements for offenders
varies from jurisdiction to jurisdiction.
Where jury trials are available,
success rates for acquittal are surprisingly good. The national average
for acquittals is about 50 percent for those accused of drunk driving
if their cases are heard by juries. In some jurisdictions, only about
20 percent to 30 percent of all drunk driving arrests lead to a conviction,
while other states have an 80 percent to 90 percent conviction rate.14
In the few states that have
abandoned the right to jury trials for misdemeanor drunk driving cases,15
defense attorneys will have a more difficult task convincing a judge to
acquit. However, this only applies to about 5 percent of all drunk driving
The formula for success is
to investigate exhaustively; conduct pretrial discovery and motion practice
aggressively; use evidentiary maneuvers and procedural devices skillfully;
and present a well conceived, thoroughly choreographed trial with expert
witnesses, character witnesses, and other tried-and-true tactics for successful
defense of criminal cases.
Many people know someone who
has been charged with this offense and pleaded guilty or nolo contendere.
Because most people believe that these cases are difficult or even impossible
to win, the average client will not challenge the trusted attorney's "sage
Attorneys who enter pleas of
guilty or nolo contendere for these clients will never win those
cases. Their files for these clients probably contain only three or four
pieces of paper, clearly indicating that they have not performed "due
diligence" investigations. Granted, the client may have told the
attorney that he or she could not afford to contest the charges. But was
the client fully informed of the penalties that will follow a conviction?
If the client had known this, would the client have chosen to seek a trial
to challenge the state's case?
In explaining to clients why
they should consider pleading not guilty and letting a jury decide their
fate, I often compare receiving a conviction for drunk driving with receiving
a diagnosis of cancer. Getting rid of the problem may be expensive and
difficult and will involve some risks, but the alternative is much worse.
This may seem like a bad analogy,
but consider the "cancer" that attacks the lives of convicted
drunk drivers. Some have committed suicide after incarceration for drunk
driving. Certainly, people who suffer from untreated cancer (or their
survivors) will not be pleased if they later discover that the doctor
should have recommended surgery, not vitamin therapy. Similarly, people
who suffer the consequences of ill-advised guilty pleas to drunk-driving
charges will not be pleased with their lawyers.
Myth Number 5: Drunk-driving cases are just like any other criminal case.
Nothing could be farther from
the truth. In many areas, the courts handle these cases differently from
other offenses. Here are two examples that make the point.
First, consider the normal
prosecution where the state proposes to use physical evidence as part
of its case-in-chief. For example, suppose John Doe is charged with murder,
having allegedly shot Tom Jones. The prosecution will normally order ballistics
tests, take blood spatter patterns and fingerprints, and collect other
physical evidence. That evidence is always subject to independent analysis
by the defense attorney representing the accused.
This is not true in drunk driving
cases, where breath tests usually are not required to be preserved. Very
few states require police officers taking a breath sample to capture some
of the breath so it can be analyzed independently at a later date.16
Yet, all modern breath analysis machines can provide sealed samples at
a minimal cost. The U.S. Supreme Court has said that it is perfectly acceptable
that such critical evidence is destroyed, even where the state could have
preserved it for less than $1 per sample.17
Another consideration is the
use of roadside sobriety checkpoints (roadblocks) at which drivers are
briefly detained to determine if they are under the influence of alcohol
or drugs. More than 40 states permit this, and the U.S. Supreme Court
has given its stamp of approval to this encroachment on our Fourth Amendment
rights.18 A few states like Louisiana and Texas have ruled
that their state constitutions provide protection against such arbitrary
searches and seizures.19
Manifestly unfair judicial
decisions have been rendered in many other areas in an effort to stamp
out drunk driving.20 A book could be written about these unfair
and unconstitutionally premised state court decisions. Suffice it to say
that the judicial system has erected difficult hurdles for practitioners
who defend drunk-driving cases.
No attorney likes to hear the
word "malpractice." However, I am convinced that faulty representation
in these cases is blatant attorney malpractice. Often, the attorney's
negligent handling of a drunk-driving case is attributable to a defeatist
Lawyers must take these cases
seriously. Either they must fully educate themselves on this subject so
they can provide an effective defense, or they must refer these cases
to lawyers with expertise in the field. This will protect these clients
from great harm and provide the lawyers with many peaceful nights, free
from the concern that they may have improperly advised a client.
1 JAMES C. FELL,
NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., REPEAT DWI OFFENDERS INVOLVEMENT
IN FATAL CRASHES (1992).
2 James C. Fell,
Drinking and Driving in America, 14 ALCOHOL, HEALTH & RES.
WORLD 24 (1990)
3 J. GARY TRICHTER
& W. TROY MCKINNEY 1 TEXAS DRUNK DRIVING LAW 37 (1991).
4 See generally
REESE I. JOYE & JAMES LOVETT, THE TRIAL WORKBOOK (1986).
5 Spurgeon N. Cole
& Ronnie M. Cole, New Proof That Field Sobriety Tests Are "Failure
Designed," DWI J.: L. & SCI., Feb. 1991, at 1; Jonathan
D. Cowan & Susannah G. Jaffee, Field Sobriety Tests: The Flimsy
Scientific Underpinnings DWI J.: L. & SCI., Dec. 1990, at 1.
6 Ralph Hingson
& Jonathan Howland, Use of Laws to Deter Drinking and Driving,
14 ALCOHOL, HEALTH & RES. WORLD 38 (1990).
7 Adam Gelb, Georgia
's DUI Scandal: Car Insurers Often Fail to Flag Driving Records,
ATLANTA J., Nov. 6, 1991, at D1, D3.
8 SOUTH CAROLINA
DEP'T OF INS., DUI: DIED UNDER THE INFLUENCE (1991).
9 Action against
employees varies from state to state and employer to employer. In non-union
companies operating in states with no right-to-work laws, employees have
less protection against discharge based on a drunk-driving conviction
because they can be fired "at will." Employers can justify the
termination by citing "insurance factors," diminution of employee
versatility, or more general grounds, such as the employees' "lack
10 State v. Webb,
No. ST-92-CR-1689 (Ga., Clarke County Super. Ct., arrested June 7, 1992)
(before trial for an alleged drunk-driving offense the University of Georgia
notified the defendant of a proposed immediate suspension for one quarter).
11 Markel v. City
of Circle Pines, 479 N.W.2d 382 (Minn. 1992).
12 U.S. CONST. amend.
I, $8; Dep't of Defense Directive 5525.7; U.C.M.J. Article 15.
Gary Taylor, MADD at Lawyer, NAT'L L. J., Mar. 9, 1992, at 2
(article about Texas sole practitioner facing disbarment proceedings for
drunk driving); sidebar, NAT'L L. J., May 11, 1992, at 2 (citing
Massachusetts case where superior court judge retired after misconduct
charges based on an arrest for suspected drunk driving were brought against
14 FELL, supra
Blanton v. City of North Las Vegas, 489 U.S. 538 (1989). Nevada, New Jersey,
and New Mexico are among the states that allow no jury trial for first
16 Only six states
require preservation of breath samples: Alaska, Arizona, Colorado, New
Hampshire, Oklahoma, and Vermont.
17 California v.
Trombetta, 467 U.S. 479 (1984).
Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990).
19 State v. Church,
538 So. 2d 993 (La. 1989); Higbie v. State, 780 S.W.2d 228 (Tex. Crim.
20 State v. Powers,
555 So. 2d 888 (Fla. Dist. Ct. App. 1990), Bryant v. State, 410 S.E.2d
778 (Ga. Ct. App. 1991); State v. Tosar, 350 S.E.2d 811 (Ga. Ct. App.