“Every DWI Case Is Defensible”

by Jamison Koehler on April 10, 2010

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.

3 Comments on ““Every DWI Case Is Defensible”

  1. Oooh, that sounds like a challenge, my good sir!

    I am curious, here in Texas almost all felony cases now include blood results. The officer can check to see whether the person detained has priors, and if so gets a warrant. When I saw your claim that all DWIs are defensible I immediately thought of those cases where I have blood. I’m not seeing much of a fight from lawyers on those, because I’m not sure there’s much that can be done outside a motion to suppress.

  2. Challenge on, Mr. Confidential, although I have to admit I am afraid of your British accent!

    I recently changed the voice message on my office machine, and asked my former sister-in-law — a Brit — to do it for me. I don’t know what it is about the British accent. But it gives the recording just the touch of class I am trying to convey. And my sister-in-law is pleased to have become the “Voice of Koehler Law.”

    It’s interesting what you say about the use of blood tests in Texas. Yes, those are in fact much more difficult to challenge, though even those, according to Lance Platt, are fallible. They use blood tests in Philadelphia mostly in cases in which the defendant is suspected of driving while under the influence of drugs. In D.C., police rely almost exclusively on breath tests. Someone told me that the city had been sued a while back for some egregious instance in which administration of the blood test had gone haywire.

    Finally, though I have accepted your challenge, I should note that Lance Platt (and I quoting him) said that all DWI cases were “defensible.” We did not say “winnable.” There is the feeling in D.C. anyway that far too many cases are pled out.

  3. I agree that most DWI’s are defensible, and you and I have discussed how I think DWI/DUI’s are incredibly complex and difficult. I find it disheartening to think that anyone believes that a DWI is ‘easy’ or, really, that any case where a person’s liberty (in any sense of the word – driver’s license, job, etc.) is at risk is a quick and easy way to make money. I say, if you don’t understand the weightiness of what you are doing, maybe you should become a prosecutor.

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