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HOW TO CHOOSE A DUI LAWYER
IF YOU'RE FACING A JAIL SENTENCE, YOU NEED A LAWYER, EVEN IF
YOU ARE GUILTY
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First, even if you
believe that you are guilty, you enjoy the right of
being presumed innocent. A good lawyer can evaluate the
strength of the evidence against you in ways that you
cannot do yourself.
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Second, a major issue
in every case is whether the police unlawfully stopped,
arrested, tested and charged you with Driving Under the
Influence (DUI). A good lawyer will evaluate whether the
police acted lawfully. If your rights were violated,
there may be no case against you.
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Finally, the help of a
good lawyer is critical in limiting the damage that a
DUI charge can have on your life, family, and
livelihood. A good lawyer will direct you to an agency
that provides alcohol evaluations and counseling so you
can address any alcohol issues and address the trauma
associated with a DUI arrest.
CHOOSE A LAWYER WHO FOCUSES ON DEFENDING DUI CASES
There are different kinds
of lawyers. You need to know how to choose an attorney who
can help you with your DUI matter. In general, you will find
the following kinds of lawyers:
Discount Lawyers:
You will get what you pay for. Discount lawyers earn their
living by handling a high volume of cases or by maintaining
unreasonably low office overhead (no secretary, etc).
Discount lawyers are not skilled in analyzing and defending
DUI cases. Rather, discount lawyers are skilled in quickly
disposing of cases by entering pleas. Be skeptical of any
lawyer who charges a retainer less than $1,500.00 for a
first DUI offense, and $2,500.00 for a second DUI offense.
General Practitioners:
General practitioners handle some criminal work, but also
handle real estate, probate, divorce, wills, etc. A general
practitioner may be reasonably priced (fees in the
$1,500-$2,000 range), but will lack the knowledge and skill
necessary to defend a Driving Under the Influence charge.
This may be true even if the general practitioner handles a
significant number of DUI cases. Most of the general
practitioner’s DUI cases are plea-bargained.
Public Defender:
Having a Public defender assigned to your case may be
beneficial, if the Court determines that you qualify for the
Public Defender, than a discount lawyer or a general
practitioner.
Extremely Expensive
Criminal and DUI Defense Lawyers: You should proceed
with caution if you wish to hire the most pre-eminent
criminal defense lawyer you can afford. Expect extremely
expensive criminal and DUI defense lawyers to charges
retainers in the range of $5,000.00 and up, plus additional
fees for trial, and even more for a repeat offense with
substantially enhanced penalties. Be aware, however, that
some of the extremely expensive criminal and DUI defense
lawyers may not be experienced in handling driving under the
influence cases, as they may perceive these offenses as too
“minor”, and not worthy of their best effort.
Lawyers Who Focus on
Driving Under the Influence Defense: Driving Under the
Influence defense is now recognized as a separate area from
general criminal defense. Choose a lawyer with experience in
handling DUI cases. Choose a lawyer who focuses on defending
driving under the influence cases, and who keeps current
with developments and evolving case law regarding DUI
defense.
RETAIN THE BEST LAWYER THAT YOU CAN AFFORD. DO NOT RETAIN
THE CHEAPEST LAWYER YOU CAN FIND.
If you cannot afford a
lawyer who focuses on DUI defense, then you should request
that the Court appoint the Public Defender (if the Court
determines that you qualify for a Public Defender) to
represent you. A Public Defender is a better choice to
represent you than a discount lawyer or a general
practitioner.
If you can afford to hire
a lawyer who focuses on DUI defense, the lawyer should
provide you a free initial consultation, and should spend
between one-half hour and one hour with you discussing your
case. During the initial consultation you should relate, in
detail, what occurred regarding your DUI arrest. The lawyer
should provide a brief analysis regarding the following
matters:
SIX KEY FACTORS IN EVALUATING A DRIVING UNDER THE INFLUENCE
CASE
Many people, including
some lawyers, believe that if you are arrested for driving
under the influence, and fail a breath or blood test, you do
not have a chance to win. To be clear, driving under the
influence cases are difficult to win. Successfully defending
a driving under the influence case requires careful and
thorough investigation of all of the facts, and not just the
facts that the arresting officer has recorded in his or her
police report. In driving under the influence cases, the
police report consists of fill-in-the-blank forms and a
narrative. In almost all police reports, the arresting
officer focuses on a few facts which are slanted to
demonstrate that the motorist was allegedly impaired. The
arresting officer ignores other pertinent facts which could
call into question whether or not the motorist was, in fact,
actually impaired. For example, the police report may state
that you put your foot down during the one-leg stand test,
but the report will fail to mention that you put your foot
down at the request of the arresting officer, as depicted in
the in-squad video.
A good lawyer does not
merely read, and accept at face value, the content of a
police report when analyzing a driving under the influence
case. A good lawyer thoroughly investigates the case,
obtains additional information and records not contained in
the police report, and “thinks out of the box” in
establishing a viable defense.
Factor One: Did the
Arresting Officer Follow The Rules?
Whether or not you are
actually guilty of driving under the influence may be one of
the least important factors in your case. The rule of law
protects the most important of our civil liberties: the
right to be free from unreasonable stops, seizure, searches
and arrest. The police must follow strict rules that prevent
them from stopping and arresting citizens without
articulable suspicion or probable cause. In many instances,
the police act on a mere hunch or suspicion, without
articulable suspicion or probable cause. Any evidence that
police obtain as a result of their unlawful behavior may not
be used against you in Court, even if the evidence clearly
proves that you are guilty.
Do not assume that because
the arresting officer pulled you over or approached you, you
committed a traffic violation which justified the stop. A
good lawyer will carefully analyze all of the facts
regarding the arresting officer's decision to stop,
question, administer Standardized Field Sobriety Tests (SFST’s),
and arrest you. A good lawyer will take any opportunity to
challenge the basis of the arresting officer’s decision to
pull you over, administer Standardized Field Sobriety Tests,
arrest you and subject you to either a breath, blood or
urine test.
Do not assume that because
you failed the Standardized Field Sobriety Tests, the
arresting officer and prosecutor have sufficient evidence to
prove you guilty. Many police officers do not administer the
Standardized Field Sobriety Tests correctly. The federal
government, through the National Highway Traffic Safety
Administration (NHTSA), has established a set of driving
under the influence investigation procedures with which the
arresting officer must comply. Police officers must attend a
three-day course, which includes proficiency testing. A good
DUI defense lawyer will be familiar with, or trained in
administering, the SFST’s. A good DUI defense lawyer will be
able to challenge and pick apart the manner in which the
arresting officer administered the SFST’s.
Do not assume that because
your chemical test indicated that you were impaired, the
test result will be entered into evidence against you. It is
possible to suppress the chemical test results.
Factor Two: The Story
of Your Day
Whether or not you were
impaired depends on whether or not you consumed an excessive
amount of alcohol or ingested drugs. The story and details
of your day are very important. In which bar, restaurant or
friend’s home did you drink? What time did you arrive? What
time did you start drinking? What did you drink? How many?
What time did you stop drinking? Did you eat any food? Did
you ingest any prescription drugs? What time did you leave?
Were any of your friends or family with you at the party?
Where did you go afterwards? Were you alone? If your eyes
were allegedly “bloodshot and glassy”, how long did you work
that day? Under what kind of conditions did you work? Did
you come into contact with any chemicals or solvents? If so,
what? If you allegedly performed poorly on the Standardized
Field Sobriety Tests, were you suffering from an injury? If
so, what was the nature of that injury? This information is
important as it may determine whether or not you were
intoxicated and whether or not there were witnesses to
support your story.
Witnesses may be able to
testify that at no time did you appear to be intoxicated.
Witnesses may be able to corroborate your minimal or
moderate alcohol consumption, food intake and sobriety. The
prosecutor will do his or her best to portray you as an
irresponsible drunk. Witnesses can “humanize” you. The
people with whom you socialized on the date of your
incident, including the bartender, can be important
witnesses.
Chemical tests of breath
and blood, as well as a police officer’s claim of “strong
smell of an alcoholic beverage on breath”, can be flawed and
unreliable. It is important, if possible, to identify and
locate any credible witnesses to corroborate your actual
alcohol consumption. This may be possible using charge card
records, as well.
Factor Three: Your
Driving
Why did the arresting
officer stop you? What was it about your driving that drew
the attention of the arresting officer? Did your car have a
burnt out license plate light? Were you speeding, three
miles per hour over the posted speed limit? Were you
swerving? Did you momentarily cross the center line? Did you
momentarily cross the fog line? Were you involved in an
accident? Did you pull over promptly, safely and in a
controlled manner when the arresting officer activated the
squad car lights and siren?
The arresting officer will
usually try to report, in detail, the driving violation(s)
which supported his or her reason to stop you. Improper Lane
Usage is the most common traffic violation police officers
cite for stopping a motorist. The prosecutor will argue that
these traffic violations are evidence of impaired judgment
and poor coordination associated with impairment. That is
often, of course, not the case.
Police officers following
motorists late at night, especially after the motorist has
left the parking lot of a “local watering hole”, will often
stop motorists for slight or invalid reasons. Police
officers often stop a vehicle on some pretext, which has
nothing to do with impaired driving.
In some instances, driving
may appear to be “erratic”, when, in fact, it is not. For
example, police officers will stop motorists for “weaving
within the lane.” So what! As long as you drive within your
lane, you are not weaving!
Many times, people are
arrested for driving under the influence when the initial
stop was due to some factor unrelated to alcohol consumption
or drug ingestion.
Factor Four: Your
Actions/Performance, Appearance and Behavior
The arresting officer’s
observation of you--from the moment you are stopped to the
moment you leave the police station–is crucial.
Police officers are
trained to observe. Yet, in most driving under the influence
cases, the arresting officer’s observations are limited to
negatively describing your driving, performance on the
Standardized Field Sobriety Tests (SFST’s), appearance and
behavior. To properly evaluate your driving under the
influence case, all of your actions, appearance and behavior
should be considered.
Were you able to find and
provide the arresting officer your driver’s license without
fumbling or dropping the license? Did you provide the
arresting officer the correct documents? Did you understand
the arresting officer’s questions and directions? Were you
able to exit your car without difficulty? Did you
communicate your name? Did you ask the arresting officer to
repeat his or her questions? Did you walk to the area where
the field sobriety tests were performed without difficulty?
What were the weather and lighting conditions? Was the
pavement surface smooth, or uneven and/or cracked? Were you
able to enter and exit the squad car without difficulty? Did
you walk into the police station without stumbling?
Did you cry? Were you
verbally aggressive toward the officer? Did you become
emotional? Were you respectful toward the officer? Were you
cooperative? Were you calm and level-headed?
Common and standard
observations that are related by law enforcement, in
virtually all driving under the influence arrests, are:
“bloodshot and glassy eyes, slurred and/or mumbled speech,
and strong odor of an alcoholic beverage on the subject’s
breath.” A skilled lawyer understands how to show a jury
that these observations are often fabricated, exaggerated,
inconclusive and taken out of context. For example,
bloodshot eyes may be attributed to eye irritation caused by
prolonged contact lens wear, cigarette fumes, irritating
vapors or fumes, sleep deprivation/fatigue, or may be the
person’s normal appearance. The police usually have no prior
experience with a subject and his/her voice; the person’s
normal speech may sound slurred because he or she resides in
Alabama or Virginia, or the person has been afflicted with a
medical problem which precludes clear speech, such as a
stroke. Similarly, the odor of an alcoholic beverage may
indicate that a person recently consumed alcohol, but cannot
indicate the type or amount of alcohol consumed.
Finally, the Standardized
Field Sobriety Tests are unfair. The tests are not intended
for people to pass. Many sober people cannot successfully
perform the Standardized Field Sobriety Tests. Rather, the
tests are intended for you to fail. Once a police officer
asks you to exit your car to perform the Standardized Field
Sobriety Tests, the officer has already made the decision to
arrest and charge you with the offense of driving under the
influence; the tests are simply intended to provide the
police officer with objective information to substantiate
the arrest. The irony in all of this is that many trained
police officers, when asked to demonstrate the tests in
front of a jury, will fail. Jurors who attempt to perform
these tests during deliberations will often fail.
The National Highway
Traffic Safety Administration (NHTSA) has established three
recognized Standardized Field Sobriety Tests: Horizontal
Gaze Nystagmus (HGN), Walk-and-Turn/Touch-Heel-to-Toe, and
One-Leg-Stand. There are other, less common tests, such as
finger-to-nose and alphabet tests. The National Highway
Traffic Safety Administration publishes various manuals
regarding how these tests should be administered, performed
and evaluated. Nevertheless, it is common for police
officers to depart from proper test procedures or to grade
on irrelevant factors. These tests are usually performed
under the worst of conditions: in poor lighting, on uneven
or cracked pavement, in inclement weather, near passing
traffic, near oscillating lights, etc. A police officer may
even arrest a motorist for failing a single field sobriety
test, after having passed a series of previous tests. A
skilled lawyer will be able to point out the unfairness of
the police officer’s administration of the field sobriety
tests, and direct the jury’s attention to all of the
Defendant’s behavior and motor skills consistent with
sobriety.
It is important, and
necessary, to describe to the jury the entire picture
regarding your actions, appearance and behavior. The jury
cannot rely only on the police officer’s observations, which
are often biased, exaggerated, and taken out of context, and
always intended to obtain a guilty verdict.
Factor Five: The
Breathalyzer Test
There are three main types
of breath test machines in operation in the United States:
The Breathalyzer,
The Intoxilyzer and
The Intoximeter.
The most famous of the
three, the Breathalyzer, is largely obsolete. Most police
departments in Illinois use the Intoximeter EC/IR II.
Breath testers are subject
to error if not properly operated. One error is mouth
alcohol contamination. The EC/IR II is designed to test the
subject’s deep lung air. However, before the subject’s deep
lung air can be tested, it must pass through the subject’s
throat and mouth. If the subject burped before the test,
which can be a silent process (micro burps), the subject’s
mouth may contain relatively undiluted alcohol from the
subject’s stomach. The breath sample will be contaminated
and the breath tester will provide an elevated, and false,
reading. The EC/IR II is also designed to detect mouth
alcohol contamination, but the detection technology is
fallible.
Police breath test
operators are required to conduct a twenty-minute
observation period of the subject immediately before the
test to verify that the subject did not smoke, drink, vomit,
belch, etc. prior to the test. These observations periods
are often lax.
A skilled attorney can
demonstrate that the police officer failed to conduct a
proper observation period by eliciting testimony from the
police officer regarding the exact timing of the completion
of his or her various tasks: preparing the police report,
preparing the warning to motorist, setting up the breath
test machine, communicating with other officers, etc.
These tests are subject to
error. If you believe you were sober, but the breath test
result indicated otherwise, there is a possibility that the
breath test result was false. Detailed review of the testing
procedure is required in each individual case.
Factor Six: You.
The charge of Driving
Under the Influence carries a social stigma. If you were
charged with a DUI, then you must be a monster, an evil,
irresponsible and dangerous criminal. WRONG!
This is what the
prosecutor will believe after reading the biased,
out-of-context police report documenting your alleged
incident. That is how the prosecutor will portray you to the
Judge or jury. You and your lawyer must destroy that
mischaracterization and perception.
Your lawyer must show a
prosecutor and Judge or Jury that you are a decent and nice
human being. Your lawyer must “humanize” you. For example,
your lawyer must advise the prosecutor that you are married,
have children, have never before been arrested, are employed
full or part-time, have coached a little league baseball
team or park district soccer team, or devoted time to your
church or boy scout troop or local charity. In other words,
but for this error in judgment, you are an otherwise honest
and law-abiding citizen.
Your lawyer must be able
to communicate this information in Court. You and your
lawyer must be able to communicate positive messages.
How? We live in a world
where first impressions are important, and our appearance
conveys a message. You can communicate positive messages by
your appearance, posture, the respect you show the Court,
and every aspect of the way you speak and conduct yourself
in Court.
Dressing for Court, as if
you were dressing to attend your place of worship, is
important. Court is no place for sloppy hair, jeans,
tank-tops, sandals and visible body piercings. You may,
however, be an artistic individualist, and choose to appear
that way: tattoos, body piercings, an “outrageous”
hairstyle, etc. There is certainly nothing wrong with this,
but you must be aware, and remember, that the jury or judge
who will judge you and your case will also judge the message
you convey by your appearance.
Your posture and the
manner in which you address the Court are also important.
Standing straight (not necessarily in military-like
fashion), not slouching or dragging your feet, and
responding to the Court with “Yes sir, no sir, yes ma’am, or
no ma’am” go a long way toward creating a favorable
impression.
Conveying a positive
message can also be achieved by the way your lawyer treats
you, relates to you and speaks to you in Court. It can also
be achieved by the manner in which your lawyer conveys your
life story to the Court. Your job or profession does not
matter; you must convey that you live a positive and
productive life, that you give of yourself to society and
your family.
If the people on the jury
like you, they will give you the benefit of the doubt. If
the jury dislikes you, they will have no reservations in
finding you guilty. Juries are intelligent. The jury knows
when a person is not being sincere; the jury can detect
deception. If you lie, the jury will know it. If you are
honest, the jury will know it, too. Be yourself. Be the kind
of person that ordinary, average people want to believe. The
real, sincere you must shine through.
I believe in the right to
be left alone, to be free of unreasonable searches, to enjoy
the presumption of innocence, the right to fair trial and
the right to a fair verdict. If you and your lawyer
carefully consider the Six Key Factors of a driving under
the influence case, you will have a fighting chance.
Reproduced with permission from Attorney Andrew
Mishlove.
Experience counts. Results matter.
FRANKS & RECHENBERG, P.C.
1301 Pyott Road, Suite 200
Lake in the Hills, IL 60156
Phone: 847-854-7700
Fax: 847-854-7848
DISCLAIMER: This site contains
general information that is intended, but not guaranteed, to be
correct, complete and up-to-date. It is not intended to be a
source of legal advice. You should not rely on the information
in this site and should always seek the advice of a competent
lawyer.
Franks & Rechenberg, P.C. handles McHenry County
DUI (Driving Under
the Influence) charges. Cities, towns and villages in McHenry County
include: Algonquin, Barrington, Bull Valley, Cary, Crystal Lake, Fox Lake, Fox
River Grove, Harvard, Hebron, Holiday Hills, Huntley, Island Lake, Johnsburg,
Lake in the Hills, Lakemoor, Lakewood, Marengo, McCullom Lake, McHenry, Oakwood
Hills, Port Barrington, Prairie Grove, Richmond, Spring Grove, Union, Wonder
Lake and Woodstock. If you were arrested for Driving Under the Influence (DUI)
in McHenry County call Franks & Rechenberg, P.C.
Franks & Rechenberg, P.C. handles DeKalb County DUI (Driving Under the Influence) charges. Cities, towns and villages in DeKalb County include: Charter
Grove, Clare, Colvin Park, Cortland, DeKalb, Elva, Esmond, Fairdale, Five
Points, Genoa, Hinckley, Kingston, Kirkland, Malta, McGirr, New Lebanon, Rollo,
Sandwich, Shabbona, Somonauk, Sycamore, Waterman and Wilkinson. If you were
arrested for Driving Under the Influence (DUI) in DeKalb County call Franks &
Rechenberg, P.C.
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