DUI INFORMATION:     A Defense Attorney's Approach

DUI FAQ's Q: What should I do if stopped by a Law Enforcement Officer (LEO)? A: Generally, the safest thing to do is remain in your seat with your hands up on the steering wheel in plain sight. Police, do not know if you are a wonderful person or a crazed killer. Move slowly and be courteous. Q: If a LEO suspects that I am DUI, What will he do? A: After observing you in or outside your vehicle, he/she will usually request your driver's license, vehicle registration and proof of insurance. Following some additional questions he/she will tell you to undergo some Field Sobriety Tests (FSTs). Upon the conclusion of those tests you will probably be arrested. Q: Are you required by law to answer a Law Enforcement Officers (LEOs) questions? A: No! Apart from answering whether you agree to take an "implied consent" test, you generally are not required to answer any question. Most states law require that you produce your license , registration and insurance. It is surely advisable to identify yourself to the officer when stopped for proof of a traffic offense, and always be courteous or you may get hurt. However, you need not answer any questions that will incriminate you. Q: If I do not want to answer any questions or take any DUI tests, what should I do?. A: Be respectful and try to stay calm or you may actually provoke a Law Enforcement Officer (LEO) to take inappropriate action that will harm you. Politely request an attorney to assist you and call one immediately upon being given the opportunity. If you do not know an outstanding DUI attorney, quickly call an attorney you know and request him/her to send you a DUI lawyer. Give the attorney your date of birth, exact spelling of your name, which police-department arrested you and where you are. If you can not speak to your attorney and wish to refuse the tests , you can inform the Law Enforcement Officer (LEO) that you do not want to cooperate until your lawyer so instructs you. Q: Can I win a DUI case without an attorney? A: It would be very difficult for someone without legal training to prevail in a complicated DUI case. DUI has become a very complicated area of the law. Many criminal defense attorneys will confide that given the entire arena of talents needed to be mastered by the DUI defense attorney; it can be one of the most difficult criminal case to defend. Q: How do I find a good DUI attorney? A: The same way you find a good doctor or an accountant. The best way is through an informed recommendation, usually from another lawyer, or by reputation. Remember, you are not looking for an attorney that will do a DUI case, too many will try one, you are searching for a lawyer that practices extensively in the field of DUI. The attorney you interview should be one that has an extensive DUI background. Find out how many DUI cases he/she has done, has the firm been published in any legal journals or written any books, their approach to your case and your impression of their skills and attitude. Q: how much should a DUI attorney charge: A: That's a difficult question because both the level of skill and regional prices fluctuate so much. I have known great DUI attorneys who charge anywhere from $3,500.00 to $20,000.00 for a first offense. Why is there such a variation in price? First, prices of legal services, as with the cost of rent, will vary from state to state and community to community. Second, some attorneys have achieved such excellence that they, as with outstanding doctors, are entitled to expect higher fees. In such cases, I would never simply take the word of the attorney for how good he was; I would want to see ratings such as Martindale-Hubbel, awards, DUI organizations with which he/she is affiliated, their DUI library since constant study is essential and your "gut" evaluation about this person. Additionally the penalties; amount of time required and complexity of the case must also be considered. Remember , you can find lawyer for next-to-nothing but all they may do is plea you guilty. Often, you get what you pay for. Q: If I can't consult with an attorney should I consent to a breath test? A: That answer depends on several things. Included in that list is how much you have had to drink? If you have had very little or nothing, then I would absolutely take the test. Even though I do not have any confidence in it, if you have had very little to drink over several hours (one or two regular size drinks) you should be fine. Then too, if it is a crime to refuse a breath test or the consequences too severe (a 90 day total shutdown of driving privileges as part of a one year total suspension for a first refusal in Florida might be too severe) you may have no choice. In some states a refusal is a criminal offense, a terrible price to pay for a refusal, of which the jury will be informed of the refusal. Who said life would be easy? Q: Why aren't breath tests accurate? A: There are many different breath machines used in the 50 states and D.C. I have no confidence in any breath machine, not only theoretically, but also because it is only a machine and can make a mistake. Every breath machine operates upon physiological assumptions that may not be accurate. Some of them are subject to internal contamination as well as external interferences such as radio frequency interference or magnetism. Blood tests, which are sometimes erroneous and should be excluded, generally are far more accurate. Q: If I fail a breath, blood or urine test, can I win my case? A: Of course you might. Outstanding DUI lawyers know many ways to attack the results. There methods range from arguing that the Law Enforcement Officer (LEO) did not carefully observe you the period required by law, attacking the manner, method and time of calibration of the machine, the number and proximity of breath tests, the quality of materials used in the machine, any repairs made to the machine, the blood/breath ratio, whether the driver was on the"rise". et-cetera. There are many more opportunities for a thoroughly knowledgeable DUI attorney to explore. Q: Why are the penalties so severe? A: Because we have focused on DUI as the major source of accidents. Nothing could be farther from the truth. Almost every statistic cited by those who would play upon your fears, concern accidents that "involve" alcohol. That doesn't mean that any one causing an accident was impaired or had too much alcohol to drink. As explained in all federal publications, to say "involves" alcohol simply means if anyone in either car of a two car collision, including all non-drivers, even those riding in the backseat, had even one drink, it is an accident "involving" alcohol. Why isn't speeding, which involves an intentional act, a crime? Most DUI drivers do not even realize they are having a problem. Alcohol does not affect the drinker until some time after the driver has consumed alcohol. Even most Law Enforcement Officers (LEOs) will agree that, for various reasons, DUI suspects rarely drive being aware of their lack of sobriety. Q: How much time do I have to contact an attorney? A: If you could not reach a lawyer while in jail you should contact a good one as soon as practicable after getting out. There are some procedures that take place very soon after your release; time may truly be of the essence. Q: Should I believe the police officers if they advise me I don't need a lawyer? A: Only if you believe that Little Red Riding Hood should have heeded the advice of the Big Bad Wolf. The Law Enforcement Officer (LEO) is not your friend or legal advisor . The Law Enforcement Officer (LEO) has sworn you are impaired and is evaluated on his judgment and performance. He might tell you, for example, that he will not appear for trial (and police sometimes tell arrested drivers that). If he really meant it, not only would it be malfeasance at the very least, but one might wonder why didn't he just let you take a taxi-cab home rather than arrest you, causing you to be prosecuted. I am so tired of hearing our clients say, "He said he only arrested me because his sergeant made him do it," and later having the client explode with anger over that Law Enforcement Officer (LEOs) recitation of what supposedly happened when the officer appears for trial. Q: Is it legal to drink and then drive? A: If you are not on probation or paroler, it is legal to drink and then drive. The legal question is are you impaired or do you have an unlawful blood alcohol level. Unless you have a special license that permits no drinking, any adult should be able to have some alcohol and the drive. It must be stressed however that drinking and then driving (we are not discussing the open-container law) is a bad idea at best, and a selfish, stupid or dangerous idea at worst. Having even one drink may cause you to be arrested, perhaps to be sure and, even convicted of a serious criminal offense. If you are impaired or drunk, you may maim or kill yourself or, even worse, someone else. Nevertheless, whether your are guilty or not, of this or any other crime, you are absolutely entitled to and should hire the best attorney you can find. Q: If I am really innocent, won't I be found not guilty. A: I am afraid that being innocent is not close to being enough to prevail. Trials, regrettably, do not necessarily discover that truth, although they may seek it. Verdicts are based upon the results of an adversarial system. The trier of fact hears testimony from the state that may be and often is untrue. Neither the judge nor jury were there themselves, they only hear the testimony sworn to before them. It is of interest that generally, only the state puts witnesses on the stand. Defense counsel usually does not, but rather only conducts a vigorous cross examination. Q: Can I be arrested for DUI while sleeping in my car if I pull off the road? A: That depends on several factors, all of which may vary from jurisdiction to jurisdiction. In most states, you can be charged with "being in physical control" of a vehicle while impaired. That is the same as driving while impaired. Then the court must decide the "control" issue: where were the keys, where was the driver, was the engine on or off and numerous other concerns. It is completely unfair to penalize a driver who pulls off the road for safety's sake. Q: Can I be guilty of DUI if I am driving only on private property? A: Again, the answer depends of several issues. Some states restrict the offense to public property but most states make it unlawful to be DUI on private property. Remember, private property is generally defined as that property on which the general public has no right of ingress or egress (coming in or going out). So, even though your local market's parking lot is owned by them, it would be deemed public property since the public has the right to enter and leave as they wish. Even if DUI is a crime on private property, in at least on estate, Florida, the law does not seem to permit an arrest for DUI on private property. Yes, the law is complex. Q: Will I be video taped? A: That depends on where the arrest is made. In some jurisdictions, many police officers have video tape in their cars. They not only video your Field Sobriety Tests (FSTs), but your vehicle while driving. As our experience clearly illustrates, you are much better-off with a video than without one; the video will almost always be more accurate and less prejudicial to you than the Law Enforcement Officer (LEOs) recollection. Q: Can I be charged with being impaired by prescription drugs? A: Yes! It is not illegal to take prescription drugs, but it is illegal to operate a motor vehicle while you are under the influence of prescription drugs. Q: If I have a prior conviction for DUI many years ago, will it affect any sentence I may get now? A: It might. In some states like Florida, your prior convictions from Florida or elsewhere, remain on your record forever and will always cause you additional punishment. In other states your record is sealed or "erased" after a given number of years and will not affect you in any manner.

		Content provided by Richard J. Essen, Esquire. Our practice is confined primarily to the defense of DUI cases "We protect your rights"  info@richardessen.com
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