HOW DO I FIND A GOOD DWI DEFENSE LAWYER

            If you have just been arrested for DWI you have probably just spent the worst night of your life.  You have been subjected to a battery of roadside gymnastics, handcuffed, humiliated and embarrassed.  You have wondered whether your name will be in the paper.  You have wondered whether you will be fired when your boss finds out about this.  You may have had to call a loved one to pick you up at the police station in the middle of the night.

            On the night of your arrest you made some decisions.  You decided whether to do all of the roadside gymnastics the police devised and you decided whether to give the state evidence to use against you in a breath or blood test.  All of those decisions are already made, and some of them may have been bad decisions.  It is important to make a good decision now.

            The next critical decision you have to make is whether to get a DWI defense lawyer.  Trying to deal with this on your own or based upon the advice of friends can be perilous.  The United States Supreme Court has noted repeatedly that misdemeanants who have counsel tend to fare better than those who do not.  In Argersinger v. Hamlin, 407 U.S. 25, 35-36 (1972) the Court found that misdemeanants with attorneys are five times more likely to have charges dismissed as misdemeanants without counsel.

            Once you make the decision to hire a lawyer the question becomes “who should I hire?”  You may not want to ask around among your friends because you are embarrassed about this.  You look in the phone book or online and see a lot of lawyers who say they represent people who are charged with DWI.  Are these lawyers good at obtaining not guilty verdicts on DWI charges, or do they just encourage their clients to take whatever deals the police want them to take?  Some lawyers encourage their clients to plead guilty to DWI because the lawyer “gets them a deal for the minimums” if they plead guilty.  This is usually not a good deal but it probably only requires a 2 or 3 minute phone call to do.  A good DWI defense lawyer knows that the real “minimum” penalty is zero: a not guilty verdict. 

            How then will you choose who to represent you?  Ask any potential lawyer how many DWI trials he actually tries per year.  Ask when he WON his last case.  This should be recent.  Ask when the lawyer’s next DWI trial is and where.  Go and watch if you can.

            If you have a case involving a breath test, ask whether the lawyer has obtained a not guilty verdict on a case involving a breath test the same or worse than yours.  For example, if your alleged breath test “result” was a .18, ask the lawyer if he has ever beaten a case involving a breath test result of .18.  Be careful here to be certain that “beating” a case does not mean “pleading it out”.  It means a judge or jury saying “NOT GUILTY”.

            The experienced DWI trial lawyer will ask you questions about the breath test that you took during your initial consultation.  He should show you a machine like the one you blew into, both at the roadside and at the police station.  The DWI lawyer should ask you questions like, “is this the same type of machine that you blew into on the roadside?” and “is this the type of mouthpiece that the officer put on the machine before you blew into it?”  These details are important and you should make sure your DWI defense lawyer is familiar with how these gizmos work in real life.

            You can get convicted of DWI all on your own.  Getting an acquittal on your own or without the representation of an attorney who regularly represents clients accused of DWI is highly unlikely.

            You wouldn’t perform knee surgery on yourself, nor would you go to an eye doctor to do it.  You wouldn’t go to your primary care physician to replace your knee either.  You would go to a surgeon who has frequently and regularly replaced other people’s knees successfully.  Likewise when you are charged with DWI you should consult with an attorney who regularly fights DWI charges on behalf of his or her clients.  This is an attorney who is thinking of ways to win your case, not some one who is looking to try and quickly plead the case out.

            In order to help you with this process, a questionnaire is included at the end of this chapter.  There are also special questions to ask regarding a DWI cases alleging drug impairment and for boating while intoxicated cases.

            Take it with you to any lawyer you are interviewing and ask all these questions.

REMEMBER:

ü      PEOPLE WHO HAVE DWI DEFENSE LAWYERS HAVE A BETTER CHANCE OF WINNING THEIR CASE THAN PEOPLE WHO DO NOT

ü      YOUR DECISION ON WHICH DWI DEFENSE LAWYER YOU HIRE MAY HAVE A LONG TERM IMPACT ON YOUR ABILITY TO DRIVE

ü      LOOK FOR A LAWYER WHO FIGHTS DWI CASES, NOT JUST PLEADS THEM OUT TO THE “DWI MINIMUMS”

ü      THE REAL MINIMUM PENALTY IS “ZERO”

CHAPTER 5 - EXHIBIT A-QUESTIONNAIRE

QUESTION 1:           How much of your practice is devoted to defending people who have been accused of crimes? 

 A-The answer to this question should be 100%, or close to it.

QUESTION 2:           How much of your practice is devoted to defending people who have been accused of driving while intoxicated (DWI), aggravated driving while intoxicated (“aggravated DWI”), boating while intoxicated (“BWI”), or related offenses? 

A-The answer to this question should be 100%, or close to it.

QUESTION 3:           Are you a member of the National College of DUI Defense (NCDD)?

A-The answer to this question should be yes.  Most lawyers who advertise for DWI cases will be members of their state chapter of the association of criminal defense lawyers.  A smaller group of lawyers in your state will also be members of the NCDD, which focuses on DUI defense.

QUESTION 4:           Are you a graduate of the National College of DUI Defense?  If Yes, how many sessions of the NCDD have you attended and completed?

A-The answer to this question should be yes.  Some lawyers join a group like the NCDD but then never complete the training programs the organizations offer to members.  The benefit to you from your lawyer’s membership in one of these organizations is the training he receives from the organization.  If he joined and never followed through with the training, the membership is not as valuable to YOUR CASE.

QUESTION 5:           Has the lawyer received training in the administration of field sobriety testing? (These are the sidewalk gymnastics the police ordered you to perform on the night of your arrest).

A-The answer to this question should be yes.  Most DWI cases turn on how the defendant performed on field sobriety tests.  Your lawyer should have received the same training as the arresting cop to level the playing field for you.  Most committed DWI lawyers will have received more training in field sobriety testing than the officer who arrested you.  Ask your lawyer what certificates and trainings he received.  These will usually be hanging on the wall of his office.

 QUESTION 6:          Has the lawyer been certified to operate and maintain the breath testing machine used in your state?

 A-The answer to this question should be an EMPHATIC “YES”.  Mistakes occur during the administration of breath testing frequently.  These occur due to operator error and/or machine error. BE SURE AND ASK THE POTENTIAL LAWYER TO SEE HIS CERTICATE THAT HE IS CERTIFIED TO OPERATE AND MAINTAIN THE BREATH TESTING MACHINE THAT WAS USED TO TEST YOU!  If he or she has been certified, the certificate will be on the lawyer’s wall.  Don’t let the police be the only one at your trial who know how this machine works!

 QUESTION 7:          When, where and how did you win your last DWI case?

 A:       The victory should be a recent one.  The answers to this question will naturally vary, but he or she should be able to rattle off a recent not guilty verdict or dismissal, the name of the court it occurred, and a thumbnail sketch of the facts and the trial strategy.  This result should have been obtained within a week or two prior to your consultation with the lawyer.

 QUESTION 8:          When is your next DWI trial?

A:        This should be within a week of your consultation.  Most DWI lawyers will have at least one DWI trial scheduled within a week or so of your consultation.  Ask the lawyer what court it will be held in and go and watch it if you are able.  The best measure of a potential lawyer’s performance is how he or she actually performs in Court.

QUESTION 9: How much advanced training in DWI defense have you had this year? In the past 3 years?

A:        If the lawyer is committed to DWI defense he or she will have several hours of DWI specific training every year to stay current in the best defenses available to you.  He or she should be able to tell you roughly how many hours of training and what the training is in.

QUESTION 10:         After reading the police report, can you win this case? How?

 A:       The lawyer must be able to develop and present a coherent theory of defense.  If he can’t explain it to you it is unlikely he will be able to explain it to a judge or jury.  You can’t sell what you wouldn’t buy. Listen to the lawyer’s answer to this question carefully.

EXHIBIT B-ADDITIONAL QUESTIONS FOR CASES INVOLVING DRIVING UNDER THE INFLUENCE OF DRUGS 

ADDITIONAL QUESTIONS-DUI-DRUGS

 QUESTION: How much, and what, training in blood testing have you received?

 A:       Your lawyer should be trained and fluent in what drug test results mean.  The lawyer should have advanced training in DWI blood testing.  The certificates for this type of training will likely be on the wall in the lawyer’s office.

QUESTION:  When, where and how did you win your last case that involved a charge of DWI-drugs?

A:        The victory should be a recent one.  The answers to this question will naturally vary, but he or she should be able to rattle off a recent not guilty verdict or dismissal, the name of the court it occurred, and a thumbnail sketch of the facts and the trial strategy. 

EXHIBIT C-ADDITIONAL BOATING UNDER THE INFLUENCE QUESTIONS 

ADDITIONAL QUESTIONS TO ASK THE LAWYER IF YOU ARE CHARGED WITH BOATING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS

QUESTION:    When, where and how did you win your last case that involved a charge of boating under the influence of alcohol or drugs?

A:        The victory should be a recent one.  The answers to this question will naturally vary, but he or she should be able to rattle off a recent not guilty verdict or dismissal, the name of the court it occurred, and a thumbnail sketch of the facts and the trial strategy. 

Q:        Has the lawyer received training in the administration of marine field sobriety testing? (These are the exercises the officer made you do regarding counting your fingers and patting your palms).

A-The answer to this question should be yes.  Most boating cases revolve around how the defendant performed on these dexterity exercises.  Your lawyer should have received the same training as the arresting cop to level the playing field for you.  Ask your lawyer what certificates and trainings he received in marine field sobriety testing.  These will usually be hanging on the wall of his office.

Contact Information:
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• The date and time you have been told to appear.
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