DWI Defense Is Not For Beginners

by Jamison Koehler on April 14, 2011
Jefferson Memorial

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?

4 Comments on “DWI Defense Is Not For Beginners

  1. The media and special interest groups have so distorted the concept of DUI or DWI that now public service announcements state emphatically “Buzzed driving is drunk driving”. It is also LEGAL to drink and drive. But try convincing the indoctrinated masses. Oh right, its not my burden of proof. In most cases, if there are no procedural irregularities, your defense is usually going to be rising or falling BAC, chemical test irregularities and controverting FST conclusions. I find this stuff very interesting, but it usually puts the average juror to sleep. I agree that DUI trials are often more technical and more difficult than the average felony. But when you have a murder case, the jury actually pays attention and is interested in what is going on. The average juror on a DUI case is a member of or contributor to MADD that fully subscribes to the zero tolerance, infallible chemical test theory and is more concerned as to why you and your client are wasting their time when you client admitted to drinking and driving. Jurors in DUI cases want you to prove your client is innocent. This is not the case in any other offense other than child molestation. Juries are far more receptive to reasonable doubt in a homicide case than in a DUI case. If you have bad FSTs, bad numbers, bad driving, and admissions you have probably lost your trial before it even started. The better the lawyer you are, the more the jurors hate you.

  2. Good post, Jamison.

    I’d like to point out to no one in particular that it is illegal to be drunk in a car with the radio on in Virginia. Even if you can prove you weren’t driving.

    This should be a PSA broadcast all across the state – the fact that the above action is a crime as serious as DUI and that no one but police and criminal attorneys are aware is a vast miscarriage of justice waiting to happen time and time again every day.

    Sorry for the de-rail, Jamison.

  3. JW:

    There are two elements to DWI in Virginia. First, the government must prove either that the defendant’s blood alcohol concentration was above the legal limit or that the defendant’s ability to drive was impaired as a result of intoxication. Second, the prosecution must prove that the defendant was driving or operating the vehicle.

    While “operate” is not defined under the statute, “operator” is defined as “every person who drives or is in actual physical control of a motor vehicle.” Although I am not familiar with the case you cite, I imagine the prosecution used the fact that the radio was on to help prove that the defendant was in actual physical control of the car. This would be consistent with Virginia case law holding that the keys do not even need to be in the ignition to satisfy the operation requirement.

    No problem with “de-railing.” I always appreciate your comments and insights here.

  4. Jamison:
    I was citing Nelson v. Commonwealth:

    If your last comment is accurate (and I genuinely hope you’re wrong) then an intoxicated person with the keys to a car could be found guilty of DWI simply by being in proximity of the car. (I am in physical control of this car as-in I have the only set of keys allowing the operation and access to said motor vehicle.)

    A humor Web site I used to frequent had this bizarre, bad-faith advice for avoiding a DWI: Always keep an unopened bottle of liquor in your center console. If the police pull you over – stop your car, throw your keys out the window and begin to chug the liquor. Ask for your attorney and say nothing else. The prosecutors will be unable to prove WHEN you ingested the alcohol and your DWI will be dismissed.

    I think that’s rubbish advice and an absolutely insane “trick” to pull on a well-meaning statute. However, when laid up against the Commonwealth’s definition of “operator,” I become a lot more sympathetic to defendants who skirt the law.

    (Aside: a beloved elementary teacher of mine was killed by a drunk driver and I am glad those laws exist. I only ask that those well-meaning laws would be prosecuted in a common-sense fashion.)

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