Photo By David McNew/Getty Images

Most people read about Lindsay Lohan’s recent troubles with the law and think about a young woman out of control.  I read the same reports and can’t help concluding that her recent sentence of 90 days incarceration for repeated probation violations was at least partially the fault of her high-priced lawyer.

Admittedly, I have no idea what her lawyer has done in her effort to assure Lohan complied with the terms of her probation arising from a series of DWI arrests in 2007.  I realize that some people are simply incorrigible and in fact, from everything I have read, Lohan would certainly seem to fall into this category.  Finally, there is also such a thing as taking personal responsibility for your actions.

At the same time, I can’t help believing that the fault for Lohan’s repeated probation violations – failing to attend weekly alcohol education classes, for example – lies at least partially with her lawyer.  Given the hefty fees I presume the lawyer is charging Lohan, it seems to me the lawyer could have hired someone to personally pick her up and accompany her to the classes.  (Think Judd Apatow’s Get Him To the Greek.)

It is always a poor reflection on the lawyer when a client fails to fulfill the terms of probation. It suggests that the client has not been properly counseled. The client needs to be fully informed that, yes, the conditions are sometimes onerous. But the flipside, as Lohan has learned the hard way, is far worse.

It is perhaps no surprise as, Carolyn Elefant and Raising the Bar have both reported, that Lohan may be seeking to hire new counsel.  Or perhaps I am completely mistaken.  Maybe the lawyer was doing everything she possibly could and, has also been reported, simply decided to resign.  In this case, who could blame her?

[While on vacation, I am reposting some of my favorite entries from the past year.]

Bad luck.  My client is middle-aged.  He has children and runs his own business.  He is a respected member of our community.   And he has never been arrested before.

He is pulled over for speeding at two am on New Year’s morning and charged with drinking-and-driving.  Two hours earlier, he would have been eligible for a D.C. diversion program.  A fine.  A payment to the crime compensation fund.  A class or two.  No new arrests.  And six months later, he could have gotten out of it, chastened, without a conviction on his record.  Instead, he is facing trial in a couple of months.

“Two hours,” I tell the prosecutor.  I put a little incredulity into my voice because I am thinking she might agree with me on the unfairness of it all.

“It’s our new policy,” she says.  “Effective January 1.”

“Come on,” I say.  “I know this is discretionary. Couldn’t you just sliiiiip this one through?” I squint my eyes for effect.  To make things seem smaller.

“It’s not discretionary,” she says.  “It’s our new policy.”

“But it’s only two hours.  And you do have the discretion.  I know you do.  And this guy would be the perfect candidate for an exception.” I go through the litany of my client’s strengths.

“I don’t care if he’s the President,” she says.  “My hands are tied. The breathalyzer score is too high.”

“Another client of mine was arrested with a higher breath test.  And I got him into the program.  You don’t think that’s unfair?”

“Unfair for whom?  Your other client?”

“No.  Unfair for this client.”

“I don’t know who your other client is.  But I’m thinking he was arrested before January 1.” She’s got me there.

I try another tack:  “What about disparate treatment of like-situated people?”

“It’s not disparate treatment.  One was arrested ON January 1, and the other was arrested BEFORE January 1.”

She thinks about this.  “Two hours into January 1, actually,” she adds.   For a moment I think she might be warming to the idea.  At least she sees the irony.

But no.   “Can’t help you.”  She’s moving on.  Maybe I offended her with the disparate treatment thing.  People don’t like to think that they are being unreasonable or unfair.  People don’t like to think they are being discriminatory.

“If not diversion, how about a deferred sentencing agreement?”  We’re at the end of the hall.  She’s about to step into the women’s room.

“Policy changed on that, too.”

“January 1?”

“January 1.  Scores are too high.  Can’t help you.  You have my offer.”

I am still stewing about this when I pick up my wife.  She’s my sounding board.  Maybe she will agree with me on this.

I try all of my other arguments.  She is unconvinced.  So I dig a little further.  “What about disparate treatment of like-situated people?”

She looks at me.  “Prosecutorial discretion,” she says.  “Forget about it.”

Nobody seems to like this disparate treatment thing. “It’s NOT a discretionary program.  The prosecutor says she has no discretion.”

“It’s still a discretionary program.  A cop pulls you over.  Sometimes he arrests you.  Sometimes he doesn’t.”

“Two hours.”  I’m back at the beginning.  “You don’t think that’s unfair?”

She thinks about it for a second.  “You know,” she says.  “If I had ever gone into criminal law, I think I would have been a prosecutor.”

I know this.  She has told me this before.

I had seen this video at a DWI/DUI training course in D.C. but was never able to find it again.  Many thanks to DC/Maryland criminal defense attorney Michael Bruckheim for letting me know where I could find it. I will link to Michael as soon as he gets his website up.

According to the Washington Post, the Office of the Attorney General (OAG) in D.C. has completed its review of 1,100 suspect DWI cases.  It has concluded that nearly 400 people were convicted of driving while intoxicated since September 2008 based on inaccurate results from the Intoxilyzer 5000EN breath test machine.  Over half of these people spent some time in jail, in most cases for at least five days.

The Post article also sheds some light on how the problems were initially discovered.   It was apparently an outside consultant who first alerted the City in February to potential problems with calibration.  The review concluded that the officer in charge of maintaining the equipment had improperly set the baseline alcohol concentration levels against which the breath results of DWI suspects were compared.  The error resulted in a 20 percent higher showing for a driver’s blood alcohol content than was accurate.

The flawed testing does not affect cases in which there was an accident or injury because blood or urine tests were also taken in those cases.  Blood and urine tests generally provide a much more accurate indication of blood alcohol concentrations.

The OAG has begun notifying drivers affected by the faulty breath tests, and at least one lawsuit has already been filed against the District with additional lawsuits expected.  According to the Post, the letters should also result in “requests for expungements, new trials and even deeper skepticism about the integrity of testing.”

While the OAG has not specifically indicated how the new trials will be conducted without use of the breath test results, it will probably be identical to the approach taken with respect to open cases affected by the faulty tests.  In those cases, the government has withdrawn the DWI charges that rely on the breath test and proceeded on the driving under the influence (DUI) charges.  While the penalties for DWI and DUI are identical, DUI charges can be more difficult for the government to prove. They rely on police officer observations, field sobriety tests and other more circumstantial evidence of intoxication.

While Virginia is generally known for the stringency of its drinking-and-driving laws, the elements of driving while intoxicated (DWI) in Virginia themselves are very similar to Washington, D.C. and other jurisdictions.  The penalties are only a little bit more severe.

The Virginia statute groups all drinking-and-driving offenses under the general category of DWI.  As in D.C., there is the per se offense of DWI in which the government only needs to prove two elements. First, it needs to prove that the defendant was driving or operating a motor vehicle. Second, it needs to introduce admissible breath, blood, or urine tests indicating that, at the time of testing, the defendant’s blood alcohol concentration was 0.08 or greater. The court can then infer impaired driving through intoxication.

The second way for the government to make out the offense of DWI is to prove that the defendant was operating the vehicle while under the influence of either alcohol, drugs, or some combination thereof. With respect to drugs, there are separate threshold levels for cocaine, methamphetamine, phencyclidine, and methylene-dioxymethamphetamine. In the case of driving under the influence of alcohol, the government also needs to introduce some evidence of impaired driving.

The penalty for a first conviction for DWI is a maximum fine of $2,500, imprisonment for up to 12 months (all of which can be suspended), and a one-year suspension of the person’s driving privileges beginning on the date of judgment.  If the blood alcohol concentration of the defendant at the time of testing was between 0.15 and 0.20, there is a 5-day mandatory minimum sentence of incarceration that cannot be suspended.  (For comparison, the threshold for a mandatory jail term in D.C. for a first-time offender is 0.20.)

If the blood alcohol concentration was greater than 0.20, there is an additional 10 days of mandatory jail time. There is also a 5-day mandatory jail term and a $500-$1,000 fine for anyone convicted of DWI committed while transporting a person 17 years old or younger.  There are enhanced penalties – and mandatory jail sentences – for second and subsequent offenses within 5 and 10 year look-back periods.

I have two observations now that I am certified to administer the Standardized Field Sobriety Test (SFST). First, the test is very difficult to perform, even for a perfectly healthy and sober individual. The test is physically challenging, particularly the One-Leg-Stand. The “divided attention” component of the test makes it difficult to follow complex instructions while performing the physical tasks.

Second, however difficult it is to perform the test, it is even more difficult to administer, particularly for a poorly trained police officer operating under less than ideal conditions.  And, as the National Highway Traffic Safety Administration manual itself points out, any problem with the test’s administration severely undermines confidence in the result.

Yesterday I posted about the guy who drove his Lexis onto our brick wall and then left it there.  I assumed he had been drinking. I assumed we would never see him again. And, as suggested by another participant at the training here, I assumed the police would soon be getting a call about a stolen car. This led me to speculate about the guy’s criminal liability.

My 15-year-old son called last night to let me know that the guy had in fact returned to our house the next day. The guy was in his late 20’s, my son said, and for the most part he just seemed embarrassed. He was not a neighbor, as I had assumed, but lived 20 miles away in Ashburn. I have no idea what brought him to our neighborhood on the night of the accident.

It must have been difficult for the guy to come to our house, my son said. My son was dismayed that his grandmother had been rude to him. The guy just wanted to give us his insurance information.  Which he did after being thoroughly chewed out by my mother-in-law.

Don’t worry, I told my son. I will call the guy when I return. I will thank him for taking responsibility and I will apologize to him for my mother-in-law’s behavior. Hearing this seemed to make my son feel better.

My son is about to get his learner’s permit, and he has obviously been thinking about these things. I’m sure this gave him special empathy for the guy, who had most likely been drinking. I am glad that my son is compassionate.  He has always been that way. But it’s probably also about time I had that conversation with him about drinking-and-driving. Much easier that than the one about the birds and the bees.

You often hear criminal defense lawyers who are just starting out say that they will initially handle drinking-and-driving offenses, like DWI or DUI, until they get their feet on the ground.  The cases are, they say, straightforward and lucrative. Once they get themselves established, well, then they can move on to more complicated felony cases, like attempted murder, drug distribution, robbery and aggravated assault.

These lawyers are right about the lucrative part. Fees can range from $500 (some guy I saw advertising on Craigslist) to $25,000, according to Lance Platt of Platt & Associates. It can be particularly lucrative if the lawyer plans on serving as an assembly line for pleading people out.

There are, in fact, some criminal defense firms – the so-called “DUI mills” – that do mostly this. You have a big name lawyer to reel the clients in.  You send a junior lawyer to actually handle the cases. You use a standard template for motions and letters. And since you can line the clients up for one guilty plea after another, you can handle tons of cases without ever going to trial.

However lucrative the cases may be, there is absolutely nothing straightforward about taking them to trial. As Lance Platt says, there is no such thing as a run-of-the-mill DWI case.  And “every DWI case is defensible.”

To demonstrate the complexity of a DWI case, compare it with, say, felonious assault. Defending an assault case is usually pretty straight-forward. The elements of the offense are simple. You do your investigation. You establish your theory of the case, and line up your witnesses, if any.  You challenge the prosecution’s case. And in the end, the judge or jury will apply the elements of the offense to the version of the incident they find most credible and deliver the verdict.

Taking a DWI case to trial can be far more complicated, starting with the elements of the offense themselves. You begin at the moment the defendant first comes to the attention of the police officer. You go through the decision to pull the defendant over, to ask him to step out of the car, and to administer the field sobriety tests.  You challenge the officer’s decision to arrest your client. You challenge the breath test results. And you deal with some pretty complicated scientific and technical issues at every step in this process.

With the challenge comes the opportunity to distinguish yourself in a highly competitive area. I myself have now been doing DWI cases for years. I have attended multiple training course, including this recent course in Houston certifying me to administer the Standardized Field Sobriety Test. And, as often happens, the more I know, the more I realize how much there still is to learn.

So how is every DWI case defensible? The prosecution usually makes its case through the good old “totality of the circumstances.” It begins with the driving violation that brought the defendant to the officer’s attention in the first place. It moves to the officer’s personal observations of the defendant – the smell of alcohol, the bloodshot eyes, the slurred speech, and the staggering while getting out of the car. The prosecution’s finest moments are then the introduction of the failed field sobriety and breath tests.

But a slam-dunk guilty verdict?  Hardly.

Ideally, defense counsel can keep out much of the potentially incriminating evidence through a pre-trial motion to suppress based on some violation of the defendant’s constitutional rights. Maybe, for example, the police officer did not have reasonable suspicion or probable cause to pull the defendant over to begin with.  A successful challenge to either the standardized field sobriety or breath tests can also swing the case.

Failing either of those outcomes, however, the case is still not necessarily lost. There are, for example, innocent explanations for every factor relied on by the prosecution in building its totality of the circumstances case. A careful and methodical challenge to each of these factors one-by-one can begin to undermine the foundation of the prosecution’s case until, if you are successful, there is nothing left to convict your client on.

Every criminal defense lawyer develops an arsenal of effective strategies, developed and refined over time, for dealing with particular issues or situations. The training I received this week in Houston has greatly added to my own. Woe to the poor prosecutor who faces me on my next DWI case.

There is nothing more gratifying for a criminal defense lawyer than the moment on cross-examination when the prosecution’s key witness begins to sweat.  The witness gets that panicked or confused look in the eye and keeps glancing over at the prosecutor as if for help.  Uh oh, the look says.  This is not going as planned.  Defense counsel knows a little bit more about this than I had expected.

It is particularly gratifying when the witness is a cocky or swaggering police officer.  This may sound disrespectful or mean, but if you have ever been bullied by such a police officer during a traffic stop or arrest, you will know what it is I am talking about. You will forgive me my glee at the witness’ discomfort.

My favorite instance was the officer who himself kept objecting to my questions.  Or another officer who told me I was asking him the wrong questions.  Apparently, they weren’t the questions he was expecting.

I am currently in Houston with the hope of honing my ability to make witnesses uncomfortable during cross-examination in a DWI, DUI, or OWI case. Specifically, I am here to become certified in administering the standardized field sobriety test, which, as I have discussed elsewhere, is the battery of tests approved by the National Highway and Traffic Safety Administration for detecting drivers impaired by drugs or alcohol. It includes the one-leg stand, the walk-and-turn, and the infamous horizontal gaze nystagmus test. At the very least, I am hoping to level the playing field.

I will be posting more about this training over the next couple of days.

According to the National Highway Traffic Safety Administration (NHTSA), the horizontal gaze nystagmus (HGN) test is a proven and scientific method for determining whether or not a person is intoxicated. NHTSA therefore included the HGN as one of three components within the Standardized Field Sobriety Test for use by police officers in deciding whether to arrest a driver under suspicion of driving while intoxicated (DWI) or driving under the influence (DUI).  NHTSA research claims that, if the police officer finds at least four of the six clues of the HGN test have been satisfied, there is an 88% likelihood that the suspect has a blood alcohol content of 0.08 or greater.  This is currently the legal limit in D.C. for DWI.

I have already discussed flaws in the research and potential problems with administering the test under less than ideal conditions, so I won’t go back over those here. The point of this entry is to highlight the numerous other potential causes of physiological nystagmus in the eyes of a possible suspect.  According to the Maryland Court of Appeals in Maryland v. Blackwell, there are well over 30 potential causes of nystagmus.  A few of the potential causes, such as syphilis or the measles, are complicated and/or rare.  Other causes occur in a large percentage of non-intoxicated people.  Nystagmus can also be caused by, for example, tiredness, eye strain, caffeine, nicotine, tranquilizers, pain medication, antihistamines, and high blood pressure.  How many people do you know who wouldn’t qualify under one of those conditions?