The Biggest Mistakes You Don’t Want To Make
The following is a list of THE BIGGEST MISTAKES commonly made by people accused of drunk driving when selecting an attorney. Feel free to use this information as a tool to help select the right representation for your case. Don’t forget: if you plead guilty you’ll be found guilty 100% of the time. Remember, when you hire a properly trained, knowledgeable and experienced trial attorney to represent you, your chances of obtaining an excellent result will increase dramatically.
Failing to Consult an Attorney Who Specializes in DUI cases
In this day and age advertising is essential to any successful business. In no other area of law can the use of three simple letters (DUI) lead to such riches for attorneys and such heartache and disaster for those accused of a crime. There are few other places where such room for abuse of those in desperate situations who are looking for hope exists. As mentioned before, many criminal defense attorneys advertise being a “DUI” lawyer. Very few are experienced at handling DUI trials. Not only is the law complex, the science and technology relating to its application can be extremely advanced as well. It takes an enormous amount of training, dedication and experience to properly and successfully defend what appears to be a “garden variety” DUI case. You wouldn’t go to a family doctor if you were suffering from a complex illness such as cancer. You would go to an oncologist. The same is true with the law. DUI defense has become a specialty. Choose your attorney accordingly.
Assuming You Can’t Win the Case
If you talk to an attorney and he takes one look at the facts of your case, including a blood alcohol content reading, and immediately begins to talk about pleading guilty, run. Don’t walk…RUN. Many criminal defense attorneys advertise as “DUI Attorneys,” most do not have the specific training, knowledge or experience to properly defend your case. Research the lawyer’s qualifications and ask questions relative to his or her training and experience with DUI cases. Ask how many jury trials they have conducted as lead counsel. A DUI conviction has numerous collateral consequences; consequences separate and apart from the associated criminal penalties. Hire a knowledgeable and aggressive attorney who will fight for you. Grab a warrior.
Failing to Visit the Scene of the Crime
Is the attorney familiar with the area of the stop or accident? If not, ask if they plan on examining the scene for themselves or sending an investigator to do so. Examining the scene provides the attorney with the intimate knowledge necessary to confidently question the arresting officer with respect to a wide variety of issues that may be relevant. Knowing about the presence of a pothole or other similar obstruction in the road may help explain a swerving vehicle, as could seeing the condition of the roadside where the field sobriety tests were administered help explain why you couldn’t keep your balance. Detailed knowledge of the scene can always help contradict the officer’s presumption that what he observed was a result of impairment. In addition, photographs and even video of the scene may prove helpful as demonstrative aids to a judge or jury.
Failing to File Pre-Trial Motions
A pre-trial motion should be filed and argued in almost every case, especially if no preliminary hearing was held. Even if the motion is unsuccessful in terms of not achieving the stated goals, i.e. suppression, dismissal, etc., the additional testimony serves to further enhance the record which will be used to limit or impeach the testimony of the officer at trial. Having such a hearing can often expose to the prosecuting attorney weaknesses in the case he might not have seen as acutely before, and can, and often does, lead to a better plea offer for the defendant.
Failing to Challenge the Validity and Objectivity of the Roadside Tests
Hiring an attorney who isn’t familiar with the phases of DUI Detection as it is taught to police through the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration (NHTSA) is akin to playing the game with the rules stacked against you. Between the three (3) Standardized Field Sobriety Tests (SFSTs) and the administration of a Preliminary Breath Test (PBT) device, in almost every case the arresting officer will deviate from the proper procedure at some point during the roadside investigation. Hiring an attorney who does not have the knowledge of these processes will cause mistakes to go unnoticed, and may result in your conviction, when the Commonwealth really does not have the proper evidence or basis to support it. There are other issues along the way that will warrant proper examination as well, and if your attorney isn’t familiar with them, they’ll fall by the wayside, along with your chances for an acquittal!
Being too Aggressive in Trying to Make the Police Officer Sound Like a Liar
A large majority of Police Officers are hardworking, honest people. They have foibles just like the rest of us: they get tired, make mistakes. Some are just plain lazy. Illustrating to the judge or jury that a Police Officer may have been mistaken in this particular instance is a much better way to highlight inconsistencies or uncertainties contained within his or her testimony. Rather than attempting to convince a judge or jury that an individual Officer is a habitual liar and never tells the truth, it is a much more successful approach to point out these inconsistencies in a manner that allows the finder of fact to see that the Officer is wrong this time, but isn’t necessarily being intentionally deceitful. This is not always the case, and if the officer is caught in a deliberate lie, he deserves to be hammered on the stand. But that case is rare, and the above is usually the most effective way to proceed.
Stipulating to the Breath or Blood Alcohol Concentration (BAC) results
One common mistake frequently made by those attorneys without the proper training, knowledge and experience is to simply stipulate (which means to agree that the alleged result is perfectly accurate and beyond question) to the “BAC.” They often do this because they wish to try and contest the case on some other grounds. No attorney should ever do this. Not only must the government offer a particular BAC reading into evidence in order to prove its case beyond a reasonable doubt, it must prove that the results are accurate, precise and reliable. In order to do so, the government must prove that the specimen was collected in an acceptable manner, by individuals who followed all the proper procedures, that it was properly handled at all times up until the moment of analysis, that the analysis was performed by a qualified person on the proper equipment… the list goes on and on and on. With all that said, if your attorney is planning on stipulating to a particular BAC reading, then you’re making the government’s job of obtaining a conviction exponentially easier.
Having the Client Take the Stand
Having the accused testify in a criminal case is rarely a good idea. Our wise Forefathers in this country came up with the Fifth Amendment to the U.S. Constitution as part of the Bill of Rights to prevent the accused from having to testify against himself. It is a wonderful gift our founding fathers gave us, and we should use it. First off, since the accused doesn’t have to testify. Why do it? You have no burden of proof. Because of the presumption of innocence and the fact that the burden is on the Commonwealth to PROVE its case beyond a reasonable doubt, the purpose of a trial is not to pass judgment on the accused or a determination of which side is right or wrong; instead, it is solely an examination of the strength of the Government’s accusations. The only question in a criminal case is “Did the Commonwealth meet their burden: Does the evidence establish the accused’s guilt beyond a reasonable doubt.?” Unless it is absolutely necessary to establish some critical fact, to remain seated next to counsel and allow that person to do the talking on your behalf is the only wise decision.
Failing to use Experts when Necessary
Using the services of an expert witness can be, and oftentimes is, the difference between winning and losing at trial. It is that simple. There is no other way around it. Sure, many cases can be, and often are, won without the use of an expert. However, when dealing with the intricacies of the reliability of blood or breath test results, expert testimony can make all the difference in the world. Talk to your attorney about whether or not your case requires the utilization of expert services and ask him how and why they’re could be an invaluable part of the equation.
Waiving a Preliminary Hearing
This is something you absolutely cannot afford to do if you plan on fully contesting the charges against you. Remember when we said “if you plead guilty, you will be found guilty 100% of the time?” Well, if you waive a preliminary hearing and don’t contest the charges, then you will always go forward to trial. The Preliminary Hearing is the first and best opportunity to cross-examine the Officer and any other parties involved is at this crucial first step. Having the hearing, at which you should always have a court stenographer present, helps establish the record early on in the proceedings and proves to be an immensely valuable “discovery” tool. Not only that, it provides you with a method of “locking in” the Commonwealth’s witnesses to their version of events, so that if they subsequently change their story later during Pretrial hearings or at trial, you will have their own words to impeach them with.
This is not to say that there is never a reason to waive a preliminary hearing, such as some counties require it in order to be eligible for certain first-time offender programs. n this area of Southeast Pennsylvania, in most district courts, if you are going to have a hearing with testimony, you have to wait until all the other cases that are waiving or making a guilty plea deal go first. Very often this can result in a long wait, sometimes several hours before you will have your case heard. Many other attorney’s will convince their clients to waive their hearings, just so they can get out of there faster, which is NOT in their client’s best interest. My personal philosophy on this is, unless the Commonwealth is giving something valuable to my client (like a first offender program, or withdrawal of some of the charges) there is NO REASON for us to waive the hearing. I have yet to insist on having a hearing where I did not learn valuable information that I later used in successfully defending my client’s case. NEVER let your attorney just waive a hearing because he doesn’t want to wait!
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