If you want to beat a DUI, you have to pick the right lawyer.
The following is a list of TOP TEN DUI MISTAKES. These are so common that we listed them. They are mistakes that folks make in hiring a DUI attorney. Most importantly, they are mistakes that lawyers who try to defend DUI cases make. We put this out here as a public service so even if you don’t hire us, you don’t fall into the same trap. Plus, you know what to be on the look out for in your chosen attorney to act like an alarm bell that you need to switch DUI attorneys.
Use this list as a tool to help select the right representation for your case. Remember, if you plead guilty you’ll be found guilty 100% of the time. But when you hire a properly trained, knowledgeable and experienced attorney to represent you, your chances of obtaining an acceptable result increase dramatically.
1. Assume the Case Can’t Be Won
If you talk to an attorney who takes one look at the facts of your case, including a blood alcohol content reading, and immediately begins to talk about pleading guilty, run. They can’t beat a DUI. Many criminal defense attorneys advertise as “DUI Attorneys.” Buyer beware. Most do not have the specific training, knowledge and experience to properly defend your case. Research the lawyer’s qualifications. Ask questions relative to his or her training and experience with DUI cases. Demand they be specific. A DUI conviction can have numerous collateral consequences separate and apart from jail and a loss of license. Most attorneys can’t even rattle off all of the consequences Take your case seriously. Hire a knowledgeable and aggressive attorney who will fight for you.
Additional recommended reading: DUI Lawyer Costs
2. Stipulate to the Breath or Blood Alcohol Concentration (BAC)
This one is the single biggest mistake made by attorneys who have no idea what they are doing. You cannot beat a DUI if you give up 90% of the case, can you? That’s like spotting the other team 50 points in football.
One common mistake frequently seen among those attorneys without the proper training, knowledge and experience is to simply stipulate (which means to agree without question) that the alleged BAC result is perfectly accurate and beyond question.
No attorney should ever do this. Never!
Not only must the government offer a particular BAC reading in order to prove its case beyond a reasonable doubt, it must prove that the results are accurate, precise and reliable. In order to do so, the government must prove:
- the specimen was collected in an acceptable manner,
- by individuals who followed all the proper procedures,
- that it was properly handled at all times up until the moment of analysis,
- that the analysis was performed by a qualified person on the proper equipment…
- the list goes on and on and on.
In the world that we live in witnesses move. Witnesses gat fired. They might be deployed overseas. Finally, they can die. You never know unless you demand that the government produce all of the witnesses against you. If they don’t, you many win. Even if the witnesses do show, they can testify in an unconvincing manner. They can admit to making mistakes. With all that said, if your attorney is planning on stipulating to a particular BAC reading, then you’re making the government’s job of obtaining a conviction exponentially easier.
Additional recommended reading: Problems with DUI Blood Tests in Pennsylvania
3. Not Visiting the Scene
Ask the attorney if they’re familiar with the area of the stop or accident. If not, ask if they plan on actually going to the scene for themselves. Examining the scene gives the attorney the intimate knowledge necessary to confidently question the arresting officer with respect to a wide variety of issues that may be relevant. For example, knowing about the presence of a pothole or other similar obstruction in the road may help explain a swerving vehicle. This and the photographs to prove it could contradict the officer’s presumption that the swerving vehicle was a result of impairment. In addition, photographs and even video of the scene may prove helpful as demonstrative aids to a judge or jury to understand why the ground was improper for the roadside tests. That’s how you beat a DUI.
4. Failing to File a Pre-Trial Motion
A pre-trial motion should be filed and argued in nearly every case. Especially if your original attorney botched up the case and waived the preliminary hearing. Even if the motion is unsuccessful in terms of not achieving the goal, (e.g., suppression, dismissal), the additional testimony helps. It serves as a means to limit or impeach the testimony of the officer at trial. If you want to beat a DUI, your attorney has to use everything.
5. Failing to Question the Validity of the Roadside Tests
Hiring an attorney who isn’t familiar with the phases of DUI Detection as it is taught to police through the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration (NHTSA) is akin to playing a game without knowing the rules while your opponent does.
That’s no way to beat a DUI.
How to save yourself from choosing a bad DUI attorney:
If your attorney can’t rattle off what the Standardized Field Sobriety Tests are, then you’re in trouble. If they can’t tell you the clues of intoxication, you are in trouble.
Between the three Standardized Field Sobriety Tests (SFSTs) and the administration of a Preliminary Breath Test (PBT) device, the arresting officer almost always makes mistakes. We have yet to see the perfect DUI investigation out of the tens of thousands we have looked at over our 20 years.
Hiring an attorney without the knowledge of these processes will allow mistakes to go unnoticed. It may result in a conviction without the proper evidence or basis to support it. The SFSTs and PBT are all part of one phase out of three concerning DUI detection. Certainly there are other issues along the way that warrant proper examination as well. If your attorney isn’t familiar with them, you go to jail. The attorney goes home. Bad result.
6. Trying to Make the Officer Sound Like a Liar
In central PA, no judge or juror likes it when an attorney calls a police officer a liar. Even if you know that the officer is a liar, you are not the judge. You are not the jury. They make the decision, not you. Some “DUI attorneys” love to yell at the cops. That might make you feel good, but it puts you in jail. That might fly in Philadelphia, but not in central PA. That doesn’t mean that we don’t paint the officer as mistaken. Illustrating to the judge or jury that the Officer may have been mistaken in this particular instance is a much higher percentage win.
How that is done:
- highlight inconsistencies or uncertainties contained within his or her testimony,
- show how they are improperly trained,
- show how hard it is to make a snap judgment (intoxication at roadside) on a stranger they have never met before,
- how they presumed the worst (drunkeness) rather than investigating why,
- how they didn’t ask you logical questions that would help show you weren’t drunk and unsafe to drive,
- show how they did an incomplete investigation,
- demonstrate the right way to do their investigation and contrast it with what they actually did,
- and much much more
We don’t lose sight of the end goal
This is about winning your case. We don’t lose sight of that. Rather than attempting to “look good”, we look to win. To convince a judge or jury that the officer is a habitual liar is something that is hard to do and frequently backfires. A much more successful approach to point out all of the above and more in a manner that allows the judge or the jury to see that the Officer is wrong this time, but isn’t necessarily being intentionally deceitful. That is a lot more believable to them. That’s how you beat a DUI.
7. Putting the Client on the Stand
Having the accused testify is rarely a good idea. Prior to the Bill of Rights, in the Colonies, King’s counsel prosecuted the case. There was no Fifth Amendment right to not testify. The accused was in a horrible spot. Either:
- take the stand to testify. Be called a liar simply because you are the accused. Be totally discredited because you have an interest in the outcome of the case. Therefore, you were guilty.
- not take the stand. Have King’s counsel say that in not testifying you have something to hide and therefore must be guilty.
It was an impossible situation. A true Catch 22. So, our wise Forefathers came up with the Fifth Amendment to solve this impossible situation.
Why we should use this gift
- In every criminal case, including DUI cases, the accused doesn’t have to testify. Why do it?
- You have no burden. Because of the presumption of innocence and the high burden on the government to actually PROVE its case beyond a reasonable doubt, a trial is not a judgment of the accused motorist and/or a valuation of whether our side, the defense side, is right or wrong. Instead, it is always an examination of the Government’s accusations.
- The reality is that no one can talk their way out of trouble. Everyone talks their way into trouble. Anyone who has ever been in an argument with a significant other knows this to be true.
- Most of the time when jurors hear from the accused, the case ends up being a vote on whether or not the jury “likes” the accused. Despite what the judge and what the law books say, in the real world, it shifts the burden from the government to the accused.
Other reasons why
- Unlike the government who has trained and experienced witnesses called the police, the accused most likely has never had to testify before. Because of this the accused will be nervous and uncertain. It is human nature when there is so much on the line. In survey after survey, fear of public speaking (which is what testifying is) ranks higher than death in terms of things that folks are scared of. Don’t let your nerves make the jury think you are a liar.
- Other witnesses exist that can establish any facts that you think that you need to do. We use drinking alibi witnesses. These are folks who know you and who have been around you. They can tell the jury how much you had to drink. They can testify how you were safe to drive. This is always better than you. If you have a pre-existing injury from childhood, for example. Mama can come in and tell the jury how you have a hitch in your giddy-up since you were 8.
Unless it is absolutely necessary to establish some critical fact, to remain seated next to counsel and allow that person to do the talking on your behalf is the only wise decision so as to avoid the King’s counsel dilemma described above.
8. Failing to Consult a Specialist
In this day and age advertising is essential to any successful business. In no other area of law can the use of three simple letters– DUI—lead to such riches for attorneys and such heartache and disaster for those accused of a crime. No other place is there such room for abuse of those in desperate situations who are looking for hope. As mentioned before, many criminal defense attorneys advertise being a “DUI” lawyer. Very, very few are. Not only is the law complex, the science and technology relating to its application is extremely advanced as well.
You have to have a near PhD level of understanding of a broad area of science before you can properly and ethically pick up a DUI case. It takes an enormous amount of training, dedication and experience to properly and successfully defend what appears to be a “garden variety” DUI case.
Why this makes sense
You wouldn’t go to a general family doctor if you were suffering from a complex illness such as cancer. You’d find a specialist. Someone intimately familiar with that type of cancer. The same is true with the law. DUI defense has become a specialty. Choose your attorney accordingly. You beat a DUI by getting a DUI lawyer, not someone who does lots of other areas of law.
9. Not Using Expert Witnesses
Using the services of an expert witness can be, and oftentimes is, the difference between winning and losing at trial. It is that simple. There is no other way around it. But again, when dealing with all the intricacies of the reliability of blood or breath testing results, expert testimony routinely makes all the difference in the world. Talk to an attorney who regularly uses the services of experts. Ask them how and why they’re an invaluable part of the equation. Ask them for names. If they can’t give you a single name, then that’s a red flag.
10. Waiving a Preliminary Hearing
This is something you absolutely cannot afford to do if you want to beat a DUI. Just like if you plead guilty, you will be found guilty 100% of the time. If you waive a preliminary hearing and do not contest the charges, then you will always go forward to trial. This first and best opportunity to cross-examine the officer and any witnesses involved is at this crucial first step. Having the hearing helps establish the record early on in the proceedings. Sometimes charges do get dismissed at a preliminary hearing. Even if they don’t, the testimony proves to be an immensely valuable “discovery” tool.
Additional recommended reading:
2nd DUI With Refusal
I couldn’t have asked for a better attorney than Tim. He was so patient with me through the whole process and answered every question I had regardless of how stupid they were. This was my second DUI in 4 years and I refused any testing which calls for an automatic license suspension. Tim fought Penndot on the refusal charge and won and also took my DUI case to trial and won. NOT GUILTY on everything. He is worth every penny I spent. If you are looking for a great attorney I would highly recommend Tim.
Justin McShane and his entire staff made me feel like they took my case personally and really cared about a suitable outcome of my case. All my calls and questions and emails were answered very quickly. I would highly recommend The McShane Firm for any representation.
The best of the best in DUI cases. Worth every penny. 8 years later and I still can’t thank you guys enough.
Best DUI Defense in PA
I was falsely accused of Driving Under the Influence with Reckless Endangerment of my young son in the car. I was in jeopardy of losing custody of my only child. Thanks to Tim, this tragedy was avoided. Tim strategically fought for me to convince the jurors that the Commonwealth’s witnesses should not be believed. He used his experience to ‘splain the truth to the jury. With just the right balance of charm, mild indignation, logic, truth telling, humor, personal anecdotes, relationship building, power of persuasion, professional acumen, trial experience, and so much more, Tim achieved success for me. He’s worth every penny. Tim did great, and I’ll always be grateful!