DWI Defense Is Not For Beginners

You would think that Jeff Gamso, as a criminal defense lawyer focusing on death penalty cases, might look down his nose at lawyers handling drunk driving cases.  After all, the difference in stakes is enormous.

You would be wrong.  In the same blog entry in which he vents about listservs, Gamso criticizes the notion, often seen on listservs, that new lawyers can pick up DWI/DUI cases as an easy way to earn some income while they get their “real practices” off the ground.  (In D.C., driving while intoxicated – or DWI – means that the suspect’s blood alcohol concentration exceeded the legal limit.  Driving under the influence – or DUI – requires the suspect’s operation to be appreciably impaired as a result of intoxication.)

Gamso points out the degree of specialization required to handle such cases.  And, he notes, the lawyer’s duty to the client is the exact same whether or not you are dealing with 1st degree murder or a simple misdemeanor charge.  It is not okay to “fuck the client,” Gamso writes, even “if it would only hurt a little.”

A drinking-and-driving case can in fact be very profitable if the lawyer’s only intention is to plead the client out. Many clients facing such a charge have never been arrested before, and are terrified at the prospect of spending even a couple of days in jail.  Many will leap at any outcome that does not involve incarceration, even if it means waiving their right to trial and pleading guilty.  Moreover, DWI laws in which the government must only prove operation and blood alcohol concentration, in addition to our seemingly absolute faith in the science and technology behind the breath test machines, makes the prospect of challenging the charges at trial feel kind of daunting.

As a result, if you went to Room 116 of the D.C. Superior Court building any day of the week at 11:00 am, you will see scores of defendants lining up to plead guilty to DUI. This is despite D.C.’s highly publicized problems with its breath test machines over the past year. This is despite the fact that, even though the DWI charge may be dropped as a part of the plea agreement, a conviction for DUI could result in the exact same sentence and fine and will result in the same consequences for the defendant’s driving privileges. The difference between DWI and DUI has to do with the government’s burden of proof, not with the level of punishment.

This is not to say, by any means, that you should take every DWI/DUI case to trial. The court will give the defendant who pleads guilty credit during sentencing for accepting responsibility.  And since every DWI case is complicated – there is no such thing as a run-of-the-mill case – every DWI case can be tremendously difficult to beat.

A DWI or DUI case can in fact be far more complicated than a serious felony case.  The identity of the perpetrator, for example, may be the only issue in an armed robbery case. There may be no question that someone walked into a convenience store with a firearm and demanded money from the cashier. The only issue for trial might be whether or not that person was the defendant.

By contrast, every DWI case can be challenged at multiple levels. There is the legal basis for the initial stop. There is the legal basis for the officer’s decision after the stop to prolong the seizure for further investigation. There is the administration of the standardized field sobriety test, which is an art in itself. And then there is the breath test administration, with all the supporting science and technology.

In other words, DWI defense is not for beginners.  As someone has pointed out the other day, if you decided to become a heart surgeon, you wouldn’t begin to perform procedures until you were completely ready to do so.  Why would you do any differently when it comes to representing someone at trial?