“Every DWI Case Is Defensible”

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.