Rectification: It depends on what breathalyzer is referred to. The portable breath test result, which is little handheld device, that is usually given to someone at the scene prior to or possibly subsequent to arrest. There is no issue if someone refuses to do that little handheld device. The portable breath test result is not considered reliable enough to use against someone in a court of law regardless, so whether someone agrees to do that test or refuses to do that test, there’s no consequence to it. Now, if we’re talking about the Intoxilyzer, a breath testing device, which is a large machine that usually sits on a desk, there is a consequence to refusing to blow into that machine.
On one hand, if a person continues to refuse, then an officer will have to get a search warrant and very likely the person’s blood would be drawn and that would result likely in a person having their license suspended for one year for refusing to blow into the breath testing device upon the police officer’s request. The other consequence of that simply refusing to blow into breath test doesn’t mean that the police officers are not going to have any evidence against the person. In the state of Arizona, a police officer is able to get a warrant usually within about 10 minutes or so and they will very likely get a warrant, they will get a blood draw and officers can go to fairly extreme lengths in order to get that blood draw including having numerous officers come to the suspect, hold the suspect down and forcibly draw a blood if the suspect attempts to refuse the warrant.
Rectification: Just not everyone fails the field sobriety tests. Sometimes, clients think they did very well, sometimes clients even report that the officers told them they did quite well. The problem is that field sobriety tests are done in a way in which it is nearly impossible to succeed in those tests. There are a certain number of clues that the police officers look for in different field sobriety tests; the Horizontal Gaze Nystagmus test, the Walk and Turn, the One Leg Stand, the Romberg Modified Test, sometimes an officer will do a Finger to Nose test and sometimes, an officer will do a Finger Counting test. There are certain cues, certain indications that the officer is looking for and some of them are not apparent. It’s not simply enough to stand on one leg for 30 seconds without dropping your leg; the officer is also looking to make sure that you don’t raise your arms, that you don’t start the test before the officer told you to start the test, that you don’t screw up in counting out loud, this isn’t much about following the instructions as it is about physically doing the test that’s been requested of you.
On most of these tests, usually two strikes against you is going to be considered a failure or is going to be considered a sign of impairment. So, for example, on the Walk and Turn, there are eight possible cues that the officer is looking for and if you have two of those cues, it is considered that you have failed that test. So, on one hand, it’s nearly impossible to successfully complete the field sobriety tests, on the other hand, if you were able somehow to successfully complete the field sobriety tests, it can be a benefit and it can make the case a bit better especially when dealing with the charge of driving while impaired to the slightest degree by alcohol, drugs, medications or vapor-releasing substances or a combination thereof. That being said, I always recommend not doing the field sobriety tests because it is so easy to fail them. Even if you are not impaired by alcohol, drugs, medication or vapor-releasing substances, a police officer and the prosecutor will always attribute your failure or your bad result on those field sobriety tests to your issues with alcohol or drugs, medications or vapor-releasing substances. It’s better, in my opinion, to just not do the field sobriety tests; I would much rather argue to a jury that my client did not want to give an officer the wrong impression that they were impaired because they have poor balance issues and that is why my client refused to do field sobriety tests.
Rectification: There’s absolutely nothing wrong with refusing the field sobriety tests. However, technically, a police officer can take the stand to testify that you refused to do the field sobriety tests and they will say that in trying to convince a jury that you knew that you would fail it because you were so drunk or high or medicated and that’s why you refused. Obviously, our response is that it had nothing to do with any sort of impairment that my client had poor balance issues and didn’t want to give the officer the wrong impression that they were impaired or under the influence of something. Again, failing to consent or do the breath test is simply going to very likely result in an officer getting a warrant and physically taking the person’s blood, if necessary. So, refusing isn’t going to make you succeed in your case, not in this state. The prosecutor still will have evidence as to blood test results but will not have the detrimental evidence or what is very likely to be detrimental evidence of how you did on the field sobriety tests.
Rectification: The current state of Arizona law is that a person who is arrested for a DUI never has to be read their Miranda Rights. Miranda Rights actually started in the state of Arizona, it started in a case called Miranda v. Arizona. However, the current standing of the law in the state of Arizona is that as long as the person who is arrested is not going to be asked any incriminating questions, they do not need to be read their Miranda Rights. This is something that I have been fighting for a couple of years now, I’ve been trying to change it, I think especially in a DUI case that officers should be required to read Miranda Rights.
There’s actually one Arizona Supreme Court case that says that in a DUI case, a DUI suspect should be read their Miranda Rights before they’re even asked to consent to a blood test or urine test. However, it is considered to be Dicta, which means that it is not something that the courts are required to follow. It is not a precedent setting law, so the judges can look at it, they don’t necessarily have to follow it. It is rare for a client to not be read Miranda Rights at all. A lot of times, what I hear from my clients is that they’re read Miranda rights just before being released. Unfortunately, the current state of the law is that person does not need to be read Miranda Rights; it is not going to lead to a case being dismissed simply because the person has not been read their Miranda Rights.
Rectification: It depends on what police agency the client is being arrested and investigated by. In the State of Arizona, at least in Maricopa County, it is very rare for police officers to have on-person body cameras. It’s been happening a little bit more. There was a requirement that every sheriff’s deputy, Maricopa County’s sheriff’s deputy, have an on-person body camera and that was in agreement that was made out of the racial profiling lawsuits. As it stands right now, I don’t know of any deputy that is currently wearing an on-person body camera. There are a few police officers out of a few different agencies that do have on-person body cameras and most do not. There are a few agencies that have dash cameras and most do not.
Recently, I saw an on-person body camera video at a Phoenix where basically the officer turned on the body camera and walked up to another officer who was investigating a DUI and alerted that officer, “Hey, I’m wearing a body camera”, which in some ways, defeats the purpose and gives the impression that an officer is going to act differently if they know that there is a camera on them. Most of the time, there is no body camera. During the times where there has been a body camera, there have been quite a few instances where it is apparent that what is written in the police report and what shows up on the video are two very different things. It would be great if all officers did have body cameras on them, did have Dashcams. Unfortunately, in the state of Arizona, that is not done. I think in some ways, body cameras are not required,
- Because of budgetary issues
- Because most of the municipalities in Arizona will blame the heat as the reason why they will not have Dashcams or on-person body cameras.
Rectification: Yes. Officers should be nice; I mean they should be respectful to the citizens and residence that they’re serving. Some officers will, in some way, use this as a trick to get a person to lower their guard and cooperate rather than being a jerk officer which tends to get police to shut down, some officers will tend to be very nice to get people to open up to answer the questions. A person who is being suspected of DUI may be more likely to be forthcoming to an officer who is not yelling at them and giving them a hard time. I’ve seen quite a few very nice officers, I’ve seen quite a few difficult officers but the police officer has a job to do, they’re there to gather evidence, whatever way is necessary.
If the officer has to be a jerk to gather evidence, they’re going to do that. If the officer is going to be a nice guy to gather evidence, they’re going to do that. I have officers that have said that they’re just going through the motion, they don’t expect this to be filed, they don’t expect someone to have high blood alcohol content. They’re there to do a job, they’re going to send it over to the prosecutor’s office and the prosecutor is going to determine if there is enough evidence to move forward with the charges.
Rectification: The court is going to determine whether to accept the plea agreement, whether to rule in favor of the defense or rule in favor of the prosecutor on any legal issues and to determine what sort of sentence would be appropriate if a defendant is convicted by way of plea agreement or by way of a jury finding the defendant guilty. Being an alcoholic or not being an alcoholic can come into play, it can be considered at mitigation. However, most people who are in the court system charged with DUI are not necessarily alcoholics; even if they are, it doesn’t necessarily weigh against them; it doesn’t weigh in their favor. What the court is really interested in is what steps has the person taken to overcome their issues with alcohol if they are an alcoholic or if they are not an alcoholic. Sometimes, people don’t realize that they’re an alcoholic. Sometimes, people will be charged with their very first DUI but they have very high blood alcohol content but they don’t consider themselves an alcoholic. I think what matters to the court is how many prior DUI convictions a person has, potentially how many times they have been arrested for DUI.
It’s something that they should not consider but it is something that they might consider. I think the more important factor to a judge is what has the person done after getting arrested for DUI to take responsibility for their issue with alcohol or take steps towards curing their issue with alcohol. That is where counseling comes into play and I think judges really do consider whether someone has gotten themselves in counseling after being arrested before anyone has really told them to do so or whether the person has simply waited to see what happens with the case before they’re basically going to be forced to go on to counseling. Whether someone is an alcoholic or not is not a defense. It is not really something that is considered by the prosecutor, it’s not really something that is considered by the judge. A few times that I’ve seen someone getting mitigation because they weren’t alcoholic is when they are already on their fourth, fifth, sixth DUI and they’re already looking at 6 to 15 years imprison and I believe in one case, a person was able to get 8 years imprison where they would normally otherwise get 10 years imprison.
The primary reason that they’re able to get 8 years imprison is because they were obviously an alcoholic, all their issues with the court system had always been with alcohol and driving and so, it was able to be used as mitigation as someone was an alcoholic. Even in alcoholic, there is nothing illegal about being an alcoholic. It is sitting inside a vehicle and driving after consuming alcohol, that’s where things get illegal. Many people that are charged with DUI are alcoholics but that, in itself, is not a crime. Everyone who is charged with DUI has a first one, so trying to argue to the court that “Well, this is my first time that I’ve ever received the DUI. I should get leniency, I should get the case dismissed”, that doesn’t work in the court system either. So, being an alcoholic or not being an alcoholic, in theory, can be used at mitigation, it doesn’t usually work except in extreme circumstances such as a person who is otherwise facing 6 to 15 years imprison.
Rectification: I never recommend doing the field sobriety tests. It’s possible that someone has been drinking alcohol for their entire lives and they have built up the tolerance and they have been able to figure out ways to do field sobriety tests or to drive properly. The problem is that there are two different ways for someone to be convicted of a DUI. The first way is more factual that a person was impaired to the slightest degree by alcohol and the second way is more scientific, that they had a blood alcohol level above 0.08 or 0.15 or 0.20. There may be people that are so tolerant to alcohol that they are not impaired at all. However, their blood test result will still come back above the legal limit, so that is still someone that would end up being convicted of a DUI regardless of how tolerant they are.
It is not going to be an excuse to be free from a DUI. People often say that they didn’t feel impair, they haven’t felt a little buzzed and literally, people can appear to be completely normal. I did have a client that was walking around, talking, standing straight up and there was actually a video of this person doing these things and yet the person was around 0.4 blood alcohol content which is 5 times the legal limit. They just had an extreme tolerance to alcohol and although they didn’t appear to be drunk, they were severely drunk to the point where most people would be in a coma. So, tolerance can come into play, in some ways it can be helpful to defense in saying that, “My client was obviously not impaired because they’re not showing any outward signs and symptoms. However, the prosecutor will also attempt to use someone’s tolerance in saying that, “Well, the reason why there is no signs and symptoms of alcohol impairment is because the person has built up the tolerance”. But then, the focus becomes okay, what is the blood test result. And that is how occasionally, we do get jury verdicts where the jury finds someone not guilty of being impaired to the slightest degree yet they find someone guilty of having a blood alcohol level above the prescribed limit.
Rectification: A person’s blood alcohol level is really based on their own body chemistry. Each person is going to be different, how they process alcohol, how their liver processes alcohol, at what rate they eliminate alcohol or at what rate they absorb alcohol. A 300 pound male is going to have much lower blood alcohol content with three drinks than a 100 pound female. It has to do with body fat, there are just a lot of different factors, so three drinks doesn’t necessarily mean you are not guilty of DUI or that you’re not truly above 0.08. Three drinks may be that you’re quite a bit above 0.08. It also depends on what is the alcohol content of those drinks especially if we’re talking about mixed drinks, most of those are not down to a science. The bartender will pour a certain amount of alcohol, they don’t necessarily measure it, they just give an approximation and so unfortunately, people don’t necessarily know how much alcohol were in those three drinks that they consumed.
The rule of thumb is if you are going to be consuming any alcohol, stay away from the vehicle because unfortunately, humans aren’t built with the ability to know what their blood alcohol content is. Some bars will carry portable breath testing devices, sometimes they sit on the bars themselves and sometimes they’re attached to walls and people can utilize them to see what their breath test result might be but those aren’t reliable. And I’ve literally had clients that took those tests determining that they were safe to drive and then, again pulled over for DUI and wonder why they’re pulled over for DUI. It’s just kind of the state of the law, the best advice is if you’re going to drink, do not drive.
Rectification: The courts aren’t necessarily concerned with the person’s profession. It goes on the theory that everyone should be treated equally, whether you are a mega rich CEO or whether you are a poor person who is pretty much living on the streets homeless; everyone in the court system is treated the same. Teachers and nurses have different factors that they need to take into consideration. With teachers, usually there is an issue with fingerprint clearance cards and that opens up a whole other can of worms. A lot of times, I’ll say about half of the time, teachers will have to deal with their fingerprint clearance cards been taken away simply for being arrested. And when their fingerprint clearance cards are taken away, they’re not allowed to go into the classroom. So, with teachers, usually we want to try and handle the cases soon rather than later so that we can get through this situation and get them their fingerprint clearance card back as soon as possible and hopefully get the case dealt with and satisfied, if necessary, as soon as possible.
Nurses, usually if there is some sort of DUI conviction, nursing schools and nursing employers do not look kindly upon DUIs. I recall representing a nurse a couple of years back. She had three separate DUI convictions from all over the county and the nursing school did not want to let her in. We were able to get everything set aside and they welcomed her in with open arms. So, nurses and teachers have certain factors to the case that other members of the society do not have and in fact, certain courts specifically will ask someone being sentenced whether they are a teacher because the court is required to disclose that someone who has a teaching credential has been convicted of the DUI. So, it’s not something that will help someone in their case if anything, there are additional provisions of the law and additional considerations that need to be made for nurses and teachers.
Rectification: Courts, again, don’t really take into consideration a person’s background when it comes to whether someone should be sentenced harsher or more lenient. There are always two sides of every coin. Someone saying that they’re a single mother might think that they should be treated more lenient because of that, a prosecutor might argue that the person is a single mother; they should have known better that they are the sole support of their child and therefore, they should be treated harsher.
A lot of times, I do not like bringing in the idea that my client has children or if they are single parents because the remedy that the court might have is maybe we should bring in Child Protective Services if there’s such a concern that the client is a single parent and that the child will be without support or protection. Usually, it’s not a good idea to bring up that someone is a single parent for that reason, I usually do not talk to the prosecutor about it, I do not try to use it in negotiating plea agreements and I do not bring it up during sentencing.
Rectification: If someone has prescribed medication and they’re being charged with DUI based on prescribed medication, there are still a few factors that play not only whether the medication was actually prescribed but whether the person was taking the medication as prescribed. Usually, part of taking prescription medication is not combining it with alcohol, so there’s an argument that the medication was not being prescribed if there is also alcohol present in the system. Having prescribed medication in a DUI case can be a defense to one other counts of DUI but it’s not a defense to the other count of DUI. So, when someone, let’s say, only have prescription medication in their system, they’re very likely still going to be charged with two counts of DUI. Under count 1, the prosecutor is alleging that the person was driving while the prescription medication was impairing them to the slightest degree, and in the other count, the prosecutor is alleging that the person was driving with the prescription medication in their system.
If the defense can prove that the person had a prescription for that medication and was taking it as prescribed, that is the defense to the medication simply being present in the person’s system while driving. It is not a defense to being impaired to the slightest degree by that medication. It is possible that someone is taking their medication the way they normally would and has been taking that medication for years, yet it impaired their ability to drive, and we see that a lot with Ambien cases. Ambien is prescribed; people take it usually because they have insomnia. Usually, the prosecutor’s scientists will take the stand and testify that any amount of Ambien in a person’s system is impairing. And despite actually being prescribed it and possibly taking it as prescribed and maybe then having taken it for years prescribed, if it impairs your ability to drive, that can still result in a DUI. Unfortunately, in Arizona, even medication DUIs are treated harsher than alcohol DUIs. In that, if someone were to be convicted of a medication DUI, their license would be revoked for one year and they would not have the ability to get a restricted license to drive to and from work and home and school.
Rectification: It can be. It depends on what state someone comes from. Each state has their own list of drugs that they consider to be a DUI. I believe it is universal at this point across all 50 states that a person who is above 0.08 can be charged and can be convicted of a DUI. Different states use different language that sounds the same. Some states will say that a person needed to be impaired to the slightest degree; some states say that person needed to be under the influence of the alcohol. There are a lot different ways to describe a DUI, which in some states is called the DWI, but all a person really needed to be concerned about is what is Arizona law? Where the distinction between Arizona law and another state’s law comes into play is if someone has another state prior DUI conviction. In order for it to be used as a prior DUI conviction within 7 years in Arizona, what was a DUI or DWI conviction in that other state has to be considered a DUI conviction here in Arizona have the offense occurred in Arizona.
So, in that case, it does take comparing what was the law in the other state, would it have been a conviction in Arizona have the person been in Arizona. And the current state of the law is that you don’t really look at the police report from the other state and you don’t necessarily look at the facts from the other state; you look to see what the law was in the other state. Different states will punish DUIs differently. In Arizona, we have three DUIs within 7 years; the third one is going to very likely be charged as a felony. Other states have four DUIs within 7 years; some states have four DUIs within 10 years. Some states may not punish medication DUIs. Some states may have defenses for medication DUIs a little different than Arizona’s defenses for medication DUIs. If you’re in Arizona, unfortunately, the way the law works is you are presumed to know the law, so it is not an excuse to say that you are familiar with a different state’s DUI laws. That is not a defense. There are a lot of differences between other state’s DUI and DWI laws than Arizona but if you’re in the state of Arizona, you’re going to have to comply with the provisions of Arizona DUI laws.
Rectification: Possibly. A lot of this depends on what court the case is in. If someone does a breath test and they are below 0.08 and there is no blood test done, then the prosecutor cannot go forward on count 2 that someone was driving with the blood alcohol level above 0.08. However, the prosecutor can technically still go forward on counter 1 that someone was driving while impaired to the slighter degree by alcohol. That charge is more factual whereas the other charge is more scientific. So, for example, if someone were to blow into breath testing device, an Intoxilyzer, a big machine that sits on the desk, and they come up with a breath test result of a 0.078, that is technically below the DUI limit of 0.08, however the prosecutor can still go forward on count 1 that someone was impaired to the slightest degree by the consumption of alcohol and the prosecutor can still bring in the blood test result that they were at 0.78. It would be up to a jury to decide whether there’s evidence that someone was impaired to the slightest degree by consumption of alcohol. In Arizona law, we have certain presumptions. It is presumed that someone who is a 0.08 or above is impaired to the slightest degree. It is a rebuttable presumption but it is a presumption. If someone is below 0.049, then there is a presumption that someone is not impaired to the slightest degree.
If someone has a blood or breath test result between 0.05 and a 0.08, there is no presumption, which means that they can go to the jury and the jury can decide whether the person was truly impaired to the slightest degree by alcohol despite that they were not above 0.08 where there is a legal presumption that someone was impaired. Now, when someone does a breath test or blood test and they’re below 0.08, what will often happen is that the prosecutor will decide to retest the blood to determine if there were any drugs or medications in the person’s system. There are some constitutional issues with a prosecutor just deciding to retest the blood especially if there was no reasonable suspicion or probable cause to believe that the person had drugs or medications in their system at the time that they were arrested. The current reality of what happens with most prosecutors is that they will decide to retest the blood for drugs and medications if the blood alcohol content does not come back high enough. So, simply having a blood or breath test result that is below 0.08 doesn’t mean the person gets off scot-free. There are some courts that are willing to dismiss the case based on a blood alcohol level below 0.08, that is their personal policy but again, most of their policies is also to retest for drugs or medications.
Rectification: The courts can’t really let it slide. Everyone who is charged with a DUI, at some point, they’re going to have their first DUI charge. A lot of it depends on what the blood alcohol content is or whether someone had prescription medications or drugs in their system. The judge can’t just say, “I’m going to dismiss the case. This is someone’s first time”. It is something that can be taken in consideration in plea negotiations, it can in theory be used as mitigation to try and negotiate down a sentence but the judge really doesn’t have the power to say, “We’re going to dismiss the case because this is your first time”. There has to be a proper legal issue in the case for judge to even consider whether a case should be dismissed.
Rectification: Not necessarily an easy, and in some way, a more complicated case. In Arizona, we have something called the shelter rule, which is basically a defense that states that as a society, we want to encourage people who are feeling too intoxicated to drive to pull over to the side of the road and sleep it off. There are about 13 different considerations as to whether someone is using the shelter rule defense including whether the engine was on, whether the headlights were on, whether the windows were up and down, whether the air conditioner was on and where the person was seated, whether they still have their seatbelt on and whether they’re properly parked and any other explanation by the defendant.
What the shelter rule was supposed to mean was that police officers do not arrest people who are doing the right thing. As a society, we want people to pull over to the side and sleep it off rather than continuing to drive in intoxicated faith. The purpose of the shelter rule is so police officers don’t hassle people who are doing the right thing. Unfortunately, police officers are hassling people who are doing the right thing, which basically makes people who are doing the right thing sitting ducks. Unfortunately, people are getting arrested and unfortunately, prosecutors are going forward on these types of cases. And because the person was doing the right thing, if they truly did pull over to the side of road and were sleeping it off, hopefully some other factors that comply with the shelter rule. It may mean that the case needs to go all the way to trial because the person shouldn’t have to take responsibility for DUI when they did the right thing and when they were utilizing the shelter rule.
So, it doesn’t necessarily make the case easier although it should. In some instances, it makes the case harder because it is a type of case that may have to go all the way to trial in order to prove innocence.
These people who do the right things are not usually the type of people where I can recommend that someone take a plea agreement. If they truly did everything that they were supposed to do and everything that society expects them to do. They are in an unfortunate situation because they did a right thing but sometimes, it takes more fighting by the defense lawyer to convince the prosecutor that not only should the case be dismissed that the case should have never been brought.
Rectification: Not at all. There are actually quite a few legal and factual issues that can be an issue in a person’s case; it takes the right attorney to spot them. DUI is not just a matter of were you driving and were you driving drunk. There are a lot of other factors to consider both legal, factual and constitutional. As a defense attorney, we need to look and see whether there was proper and reasonable suspicion to stop a person’s vehicle, whether there was proper or reasonable suspicion to launch into a DUI investigation, whether there was truly a probable cause to arrest the person, whether the officer complied with the person’s constitutional rights, correctly asked for consent pursuant to Arizona law to draw blood or to gather blood test results, whether the breath testing device was working properly and accurately, whether the officer was utilizing the breath testing machine correctly, whether the officer who was drawing the blood was using proper procedure, whether the blood testing itself was using proper procedures, whether person’s constitutional rights were violated, whether a person asked for an attorney. There are probably a couple of hundred different legal and factual issues in one DUI case. And any of those issues can lead to the case being dismissed or evidence being suppressed; it just takes the right attorney that knows what to look for.
Rectification: Anyone who is charged with the DUI is facing jail time. Anyone convicted of a DUI does have to get jail time. Jail time is required for any type of DUI conviction. If we are talking about a misdemeanor DUI, the range of sentence is anywhere from 1 day in jail up to 6 months in jail. If we are talking about a felony DUI, if it is a class 6 felony aggravated DUI, then a person is looking at anywhere from 1 day in jail up to 2 years imprison. If we are talking about a class 4 aggravated DUI, then anyone is looking at 4 months imprison up to 3.75 years imprison.
So, being charged with the DUI does mean that you are facing the potential for jail time. It is possible to utilize some tricks on occasion to get a jail sentence that is less than actually doing a full day in jail. It is possible to get credit for time spent with officers. Again, that comes down to experience and knowing what judge you’re in front of but the reality of the situation is and the rule of thumb is that anyone who is charged with the DUI need to realize that they are looking at a potential of at least 1 day in jail.
Rectification: I talk to people everyday who are charged with DUI and unfortunately, there is a lot of bad information out there. People tell me they talk to friends and they tell me about friends’ experiences, there’s a lot of bad information out there. A lot of the information on the internet is written by search engine optimization companies, I’ve seen information attributed to good lawyers that is just flat-out wrong. There is a lot of information out there by lawyers who really don’t know what they’re talking about or SEO companies that don’t know what they’re talking about. So, relying solely on research is problematic. Also, generally speaking, DUI laws change and case law changes constantly. So, when you think that may have been correct yesterday, it might not be correct today.
Again, everyone’s case is different. Some people, their case is really bad that they’re charged with an extreme DUI and they end up getting a really harsh sentence. A different person charged with extreme DUI and the case may not be as bad or there might have been some good legal issues in the case and would end up getting a better plea agreement or possibly the case being dismissed. It is hard in this field of law to compare apples to apples. Everyone’s case is different. There are a lot of different factors to take into consideration. The attorney that you have representing you matters, the facts of your case matter, if there are any legal or constitutional issues in your case, that matters. So, it’s okay to generally review what is on the internet or talk to other people to get their experience but talking to someone who knows what they’re doing and talking to an experienced defense lawyer to know the latest law and to give an honest opinion as to what is the likelihood of success or what are the issues in someone’s case, that is going to be the most helpful thing to do. Unfortunately, the internet is filled with a lot of bad advice and incorrect statements.
Rectification: Possibly. It depends on what fields of law they practice in. DUI is quite a specialized field of law. In some ways, it’s kind of like the medical profession. You may have a friend who is a doctor but if you need someone who is a brain surgeon and the other person is a foot doctor, technically, they’re both doctors but what they do is very different. If you need a brain surgeon and your friend or your friend’s friend is a brain surgeon, then that can be helpful. It doesn’t hurt to at least inquire whether the other person knows DUI law. This is quite a specialized field. In any event, it would be a good idea to talk to a DUI lawyer. There are a lot of different fields of law and a lot of different types of attorneys that don’t keep up on the latest in DUI law.
Every attorney went through law school; every attorney took the same classes in law school. Once law school ended, people went their different routes. And even an attorney that is familiar with criminal law is not necessarily up-to-date on a latest in DUI law. So, having a friend or a friend’s friend might be a good starting place but it should not be where you end. A person should always go for a free consultation, talk to a DUI attorney, talk to someone who knows what they’re doing, and get information so that you can make an informed decision of how you want to proceed. I always recommend that if a person cannot afford a private attorney, they should at least get themselves a public defender and not give up and simply say, “I’m going to plead guilty and take responsibility simply because I don’t want to deal with this”, or, “I don’t want to spend any money or fight the case”. Even if a person thinks that they want to take responsibility, they should at least have someone with a legal background review a case.
Rectification: There are a few problems with this. One, it is unethical for an attorney to guarantee success. No attorney should guarantee success. If an attorney does guarantee success, they should be able to explain why there is that guarantee. I can’t say that I have never said that I believe that I will be successful, that I believe that I can get the case dismissed but it is usually for a very specific reason and I can explain to my client this is why I believe the case will be dismissed, there is this legal issue or there is this constitutional issue. An attorney should not guarantee success. We’re not allowed to, and it’s impossible to know that where the case is going to be dismissed.
I have heard of some unscrupulous attorneys that will basically say anything to get hired and they will guarantee success. However, when you end up signing a contract, there will be a paragraph in that contract that will say, “The attorney cannot guarantee success”. If the client ever comes back at the attorney and says, “You guaranteed me success”, the unscrupulous attorney will point to the contract and say, “Right there, I told you in that paragraph that I cannot guarantee success”. And unfortunately, there are some well-known big law firms that prey on people in that way. So, a guarantee of success is really something to run away from. If someone guarantees success, I would very likely recommend a second opinion and ask for an explanation as to what is so great about your case that the attorney will go so far out on a limb to guarantee success.
Rectification: It depends on what you’re really looking for. There are different prices from different lawyers. I’ve seen attorneys handle DUI cases for as low as about $2,500 and I’ve seen some attorneys handle DUI cases for as much as $25,000. There are different lawyers on different ends of the spectrum. You can get a person who has just graduated the law school, just passed the bar, they might be willing to do a case for cheaper but they don’t have the experience, they don’t necessarily know what they’re doing. There are some attorneys that has been doing DUIs or doing criminal law for decades and they charge a lot of money because they’re good in what they do and they have a lot of experience. There are some attorneys that charge a lot of money not because they’re good at what they do, because people will think that they’re good at what they do, and that’s why they charge a lot of money. People need to make their own financial decisions. It would be great if everyone could afford a $10,000 attorney who is excellent but the reality of the situation is not everyone can.
A lot of attorneys, if you hire them and you can’t afford to continue paying them, they’re going to withdraw off the case, they’re very likely not going to refund any money and all of a sudden, you’re owed thousands of dollars and you’re owed an attorney. So, looking at the finances, making sure that you can afford to have that attorney properly represent you is a big consideration and that means money is a big consideration. My advice is to go with the attorney that you are comfortable with, ask a lot of questions, find out what the person’s experience is, find out what areas of law they actually practice. I only practice DUI law. So, if someone wants to set up a consultation with me for divorce or civil law or bankruptcy, I advise them to talk to someone else. There are a lot of attorneys that are basically jack of all trades, whatever you are willing to pay them for, that’s the type of attorney that they are; jack of all trades, master of none. You get what you paid for. You just need to do investigation and find out one that you can really afford, pay for the attorney that you want to represent you and whether they truly are the best fits and whether you are getting the most bang for your buck.