Knowledge and Experience Counts in Drunk Driving Defense!
Michigan has many top notch criminal defense lawyers, but it suffers from far too few dedicated DUI defense attorneys. Years ago, back when the yellow pages were the primary form of advertisement, the phone book listed hundreds of lawyers claiming to be "DUI Specialists." None of these lawyers were members of the National College for DUI Defense, but these same lawyers also practiced personal injury, probate, medical malpractice, divorce, child custody, etc. One might wonder, with all these areas of practice, how these old DUI Specialists had time to learn the science of breath and blood testing and winning strategies for defending a drunk driving case. The bottom-line was that these specialists specialized in pleading people to impaired driving.
In the last few years, there has been explosion of websites with lawyers claiming to be drunk driving experts. It takes very little effort to claim to be an experienced drunk driving lawyer, and a good website designer can make an inexperienced lawyer look remarkable. Many of these websites are run by nonlawyers who offer to sell spots to lawyers, renting out the page on a monthly basis.
You need to make an informed decision before you hire a drunk driving defense lawyer.
The average person facing a drunk driving offense has never been charged with a criminal offense, so they have had little exposure to the criminal justice system. Lawyers tend to specialize in one or two narrow areas of practice, with far less than half practicing criminal defense. Amongst criminal defense lawyers, even fewer focus on drunk driving defense, which has been acknowledged as a specialized area of law by the American Bar Association. That said, however, nearly every general practitioner has handled a drunk driving case, and many lawyers view these cases as an easy source of revenue.
Your prior experience with lawyers is probably very limited, if you have any experience at all. You probably don’t know what attorneys normally charge or how to distinguish a mediocre lawyer from a great lawyer. A lot of people rely upon word of mouth, which isn’t necessarily a bad place to start, but word of mouth assumes that your friends and family know a good drunk driving lawyer. You can turn to a local attorney, but chances are pretty good you’ll end up with a general practitioner or worse. Be forewarned that divorce attorneys and personal injury lawyers are more than happy to take on a drunk driving case as supplemental income, and there are no prerequisites that prevent a lawyer--regardless of the lawyer’s level of skill, knowledge, or normal area of practice--from advertising as a DUI defense lawyer.
Based upon my own experience, I have found that the typical lawyer charges anywhere from $500 to $10,000 on a drunk driving case, with an average in Wayne and Oakland County around $2,000. It is not unusual for a really good DUI defense lawyer to charge $15,000 or more on a case. With the tremendous difference in price, and little exposure to the lawyers out on the market, it can be difficult to find the right lawyer for your case. Here is a relatively simple checklist to help you make an informed decision:
Price Versus Goals
Price is always a major consideration when hiring a drunk driving defense lawyer, but you should be very cautious of anyone who promises a deal that sounds too good to be true. You wouldn’t expect to fly first class to Paris for $500, and you would probably avoid a doctor who advertised as the cheapest Detroit-area brain surgeon. On the other hand, while qualified lawyers are not cheap, you should not have to pay in advance for a jury trial to have a lawyer perform the preliminary work reviewing your case for possible challenges. Your goals are your own, based upon your particular set of circumstances, but you should research possible defenses to avoid a conviction if possible. After you’ve explored your options, hire the best lawyer that you can afford who clearly understands your goals.
Familiarity with Drunk Driving Laws & Penalties
I can rattle off the drunk driving statutes and penalties from memory, and a lot of the district court judges can too because they deal with these cases all the time. Can another lawyer? Put them to the test. The drunk driving statute is MCL 257.625. What is the suspension period for an impaired, OWI, and a super drunk conviction? What if there is a prior offense within 7 years? Chemical tests and the PBT rules are contained in MCL 257.625a, and implied consent is detailed in MCL 257.625c. If you refused a chemical test, you have 14 days to file a request for hearing (and NOT 20 as one of my competitors claims on his website), or else you will lose your license for a specified period of time. A drunk driving attorney should know this without reservation. The penalties for a PBT refusal differ from implied consent sanctions, and a drunk driving defense lawyer should be able to quickly explain this significant difference. These are simple questions that an experienced drunk driving defense lawyer should know by heart. How do other lawyers compare?
Field Sobriety Tests / NHTSA Training in SFSTS
I have been trained in the standardized field sobriety test battery, and I have taken many advanced courses in the area of field sobriety testing. I have taught and trained many Michigan lawyers in the National Highway Traffic Safety Administration’s SFST battery, and I have been qualified by several courts as an “expert witness” in this area. Knowing how these tests are conducted and scored constitutes a small fraction of the valuable information learned from the NHTSA SFST course. I spent thousands of dollars at out-of-state seminars learning and developing my skills and knowledge in this area. Meanwhile, I have offered training in Michigan to my fellow lawyers at a huge discount to them, but most of the lawyers advertising as “DUI lawyers” on the internet have not participated in this course work, even though it might directly benefit your case. A simple question that every drunk driving lawyer ought to know without reservation: How is the HGN test properly conducted?
Scientific Knowledge: Breath Testing
I have received factory training at NPAS, the former manufacturer of the BAC Datamaster, and I have attended many seminars over the years that dealt with the science of breath testing. I own a variety of breath testing devices, including the Datamaster. I have subsequently gone on to train other lawyers here in Michigan, and I have been qualified as an “expert witness” in breath testing, being permitted to testify in court and allowed to offer my opinion regarding breath testing results. Most of the lawyers who advertise in the area of drunk driving defense do not know and understand how the breath machine works, even though one of my most popular seminars is available free online for these other lawyers to watch from their own computer. Ask any lawyer you interview to briefly explain how the breath machine works and its limitations. The adequacy of the lawyer’s response might help you decide whether that attorney is qualified to handle your case.
Scientific Knowledge: Blood Testing
Blood is tested for alcohol using GC-FID (gas chromatography with flame ionization detection) and GC-MS (gas chromatography-mass spectrometry) is used to quantify the presence of controlled substances. A qualified drunk driving defense lawyer should be able to explain the difference between GC-FID and GC-MS and be able to discuss in detail the materials that he/she will seek to review in your case as well as cross-examination techniques that will be employed against the state’s toxicologist.
Jury Trial Experience in Drunk Driving Cases
Clarence Darrow once said that, "The only real lawyers are trial lawyers, and trial lawyers try cases to juries." This is especially true in drunk driving defense. A qualified drunk driving lawyer should be able to point to specific instances where he/she has taken a drunk driving case to trial before a jury. While you are entitled to waive a jury with the prosecutor’s consent, most of these so-called “bench trials” are jokingly referred to as “a slow guilty plea.” I have handled hundreds of drunk driving cases, with well over 50 jury trials. I don’t win all of my trials by any means! But if an attorney isn’t losing a few jury trials, then that lawyer isn’t taking enough cases to trial.
Memberships & Networking
Any lawyer who is serious about defending drunk driving cases is, or has been, a member of the National College for DUI Defense. Membership does not imply a certain level of skill, training, or competency, but the training and networking benefits of the organization far outweigh the annual cost of membership. Additionally, here in Michigan, we have the Criminal Defense Attorneys of Michigan, the Wayne County Criminal Defense Bar, the Institute for Continuing Legal Education, and a smaller organization of drunk driving defense lawyers called MIAOWIA, which was set up by a couple of my friends a few years ago. Again, membership in these organizations does not imply a certain level of skill, but it shows that the lawyer is willing to take that extra step to try to ensure that you are receiving skilled, knowledgeable representation in your drunk driving case.
Some common claims that should put you on guard
1. Be cautious of someone who claims, “I am friends with the prosecutor and/or the judge.”
Being friends with the prosecutor might help in some instances, but it really isn’t appropriate to brag about personal relationships. And frankly, if you get a horrible deal and get sentenced to jail, do you think that the defense lawyer and prosecutor will terminate their friendship based upon your case? Implying a special relationship with the judge is dangerous territory. If a judge felt that he or she had developed a relationship with a particular lawyer that was too close, the judge would recuse him or herself. These claims are usually exaggerated and meaningless.
2. Consider what it means when someone says, “I am a former prosecutor.”
Being a former prosecutor is NOT a badge of honor. It is extremely misleading. It implies insider knowledge, competence, and the likelihood that the “former” prosecutor has a special relationship with the “current” prosecutor. A poll was conducted a few years ago, revealing that a significant number of people thought that lawyers who graduated with honors received a position with the prosecutor's office, while lawyers who graduated near the bottom of their class became defense lawyers. That’s absurd! In reality, many prosecutors are drawn to the position because it provides 9-5 hours with benefits and a steady paycheck. Having enjoyed the relative stability and ease of working for the prosecutor’s office, good prosecutors continue working as prosecutors. And while there are certainly a few former prosecutors that became great defense lawyers, many prosecutors simply read from a script, using pre-printed questions from trial handbooks published by the prosecutor’s office.
3. RUN AWAY from anyone who states that he or she can guarantee you won’t a) get convicted, b) go to jail, c) get probation, d) lose your license.
There are no guarantees in criminal cases, ever. As a matter of fact, it is unethical for a lawyer to promise a particular result in a criminal case. When it comes to a drunk driving case, it is absolutely foolish to believe that a particular result can be guaranteed. These are hard cases, and presenting a viable defense requires knowledge, skill and experience. At best, a good lawyer can explain how a particular judge usually rules on a drunk driving case. Insofar as your driver’s license, a good lawyer can tell you what action the Secretary of State will take, but the Secretary of State takes action based upon reported convictions from the courts. A lawyer cannot petition the Secretary of State to deviate from its normal imposition of driver’s license sanctions. In some instances, however, where a person is charged as a repeat offender, a lawyer can stall a court action to avoid the imposition of a revocation.
4. Beware the claim, “I can get your license back faster.”
License penalties are handled by the Secretary of State and set by statute. A lawyer cannot prompt the Secretary of State to return a driver’s license, speed up the process, or convince the Secretary of State to grant a restricted or occupational driver’s license if the motorist is not entitled to a restricted license. This is beyond a lawyer’s control, based entirely upon the reported action transmitted by the court to the secretary of state and a review of your master driving record. What this statement really means is that the lawyer intends to plead you guilty to an offense very quickly.