How Do I Choose the Right DUI Attorney?

Monday, May 5th, 2014

“What’s the difference between lawyers and vultures?”

Let’s face it, we attorneys do not have a good rap. But obviously not all attorneys are bad. And when people have been arrested for DUI and are at their most vulnerable, they must rely on attorneys to navigate their case through the maze that is the law. So how do you choose the right DUI attorney — and what will a DUI lawyer cost?

First off, you’re going to have to do some research. With so much on the line, why would you not? Ask people you know for referrals. Check the ratings of attorneys on websites like avvo.com and yelp.com. Check to see if the attorney you’re considering has had any disciplinary action against them from the California Bar Association. You can check this at calbar.org.

When attorneys become licensed to practice law, they can practice any area of law. Does that necessarily mean that they are qualified to practice every area of law? No. There are many attorneys that are “general practitioners.” This means that they take cases ranging from probate law to real estate law to DUI defense. Personally, if I have a probate case, I’m going to go to a probate lawyer. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If you get arrested for a DUI, wouldn’t you want an attorney who only practices DUI defense or even criminal law?

Be wary of the attorney who calls your case a “slam dunk.” No case is a “slam dunk” and very few things in law are that black and white. The By law, attorneys cannot guarantee an outcome. In fact, most of the time, DUI attorneys don’t know the facts of the case until the first court date, which is when they obtain a copy of police report. Sure, you can tell the attorney your version of the story during the consultation, but that, very often, varies wildly from what the police say.

Expensive doesn’t necessarily mean good. Having said that, you also shouldn’t shop for the cheapest quote on the market. Find out what attorneys are charging for the services you’re looking for. Again, you’re going to have to do some research. I can tell you right now, most DUI attorneys charge a flat fee for DUI defense rather than an hourly fee. And that flat fee can range from below $1,000 all the way up to $10,000. Make sure that you’re comfortable with the price, the payment arrangements, and the services that you’re receiving for them.

Attorneys are not cheap. Don’t drop your hard earned dollars unless you are absolutely completely comfortable with the attorney and the relationship. After all, you are entrusting this person with representing you in a court of law.

The punchline to the joke is “wings.” Don’t get stuck with a vulture.

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Welcome to Our Guest Blogger, Jon Ibanez!

Thursday, April 17th, 2014

I have the pleasure to announce that our recent guest blogger, Jon C. Ibanez, will become a regular contributor to DUIblog.  

A graduate of the University of California at Santa Cruz, and an honors graduate of Western State University College of Law, Jon's law practice has focused on criminal defense, with a particular emphasis on DUI cases.  He also serves as "Of Counsel" to a number of criminal defense firms in Southern California, and is an Adjunct Professor at Westwood College where he teaches criminal justice and paralegal courses.

I am pleased and proud to welcome Jon as he joins me in presenting commentary upon the most interesting, controversial and important topics — legal, evidentiary and constitutional — in the fascinating field of DUI law enforcement and litigation.

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DUI DMV Hearing: Where’s the Due Process?

Wednesday, April 16th, 2014

I often tell my students that when they hear the phrase “due process” they should think of fairness. When it comes to criminal actions in a court of law, due process (at least in theory) is the cornerstone to the proceedings. Unfortunately, the same can’t be said for DMV hearings (Admin Per Se hearings) following a DUI arrest.

When a person is arrested on suspicion of a California DUI their license will be suspended by the California DMV if one of two things will happen:  1.) law enforcement takes a blood or breath test which indicates that the driver’s blood alcohol concentration level is 0.08 percent or more, or 2.) the driver refuses to complete either a blood or breath test. Due process provides that a driver has the right to request an administrative hearing to challenge the DMV’s evidence.

However, just because a driver is provided the right to a hearing does not mean that due process will be present at the hearing.

Imagine a criminal court case in which the defendant attends the hearing at the prosecutor’s office. During the hearing, prosecutor argues for a conviction. Immediately following the argument, the prosecutor throws on a robe, steps up to the judge’s bench, and rules on his own argument. Doesn’t sound fair, does it? It’ not, but that’s essentially what happens at a DMV Admin Per Se hearing.

The DMV, the same agency which is trying to sustain the suspension, is the agency which conducts the hearing. What’s more, the DMV hearing officer, who, believe it or not, is a DMV employee, conducts the hearing. (Starting to see a pattern?) The hearing officer can object to the driver’s evidence. The hearing officer can rule on his own objection. Finally, the hearing officer decides if he or she wins. They almost always do.

Forget about impartiality. Surely, the hearing officer must be someone versed in the law, perhaps a lawyer or someone holding a law degree. Think again. In fact, according to the DMV’s employment eligibility requirements, a hearing officer need not have a college degree!

Winning a DMV hearing is difficult for lawyers (although not impossible). Since the hearing is considered civil, there is no right to an attorney. What about those drivers who have to conduct the hearing themselves because they can’t afford an attorney? How difficult must it be for them to prevail in a hearing where the cards are already stacked against them?

Speaking of the hearing being civil, there’s much lower standard of proof that the hearing officer must meet before they can suspend your license. In a criminal court case, the prosecutor must prove beyond a reasonable doubt that a driver was driving with a BAC level of 0.08 percent or above. At the DMV hearing, the hearing officer only needs to prove more likely than not the driver had a BAC of 0.08 percent or more.

It is much easier for a hearing officer to meet this lower standard when they’re allowed to introduce hearsay police reports. Hearsay statements are generally excluded from court cases because the person making the statement cannot be cross examined. Not the case in DMV hearings. Most of the time, arresting officers are absent from DMV hearings. If a driver wishes to cross examine the arresting officer who wrote the report, he or she must subpoena the officer at his own cost. This includes paying for the officer’s salary for the time that they attend the hearing.

Loss of a driver’s license can have devastating consequences. One would think that with so much at stake, people would be afforded safeguards that would ensure fairness.  But where’s the fairness in any of this? Where’s the due process? 

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The National College for DUI Defense

Monday, March 10th, 2014

Until a few years ago, attorneys attempting to defend a client against drunk driving charges were general practitioners who had little, if any, understanding of the nature of the offense. They were unfamiliar with such DUI investigatory methods as field sobriety tests, and there was an almost complete lack of seminars on how to defend these clients.

Most importantly, defense lawyers were completely ignorant about the complexities of blood alcohol analysis — whether of blood, breath or urine samples. How does this breathalyzer work? What is infrared analysis? Gas chromatography? How is alcohol metabolized in the human body? What is "Widmark’s formula"? Hematocrit? What is "retrograde extrapolation" and how does it work? What physiological variables occur between individuals? What medical conditions can effect a breathalyzer reading and how? What happens if blood samples ferment or coagulate?

Chemical analysis of blood, breath or urine involved knowledge of such highly technical fields as physiology, organic chemistry, physics, biophysics, electrical engineering — subjects far beyond the experience and training of lawyers.

Then about 20 years ago, 11 of the most prominent DUI defense attorneys in the country met in a hotel conference room at Chicago’s O’Hare Airport. Over the following three days they hammered out plans for a new professional organization: "The National College for DUI Defense". They created this as a non-profit organization dedicated to improving the quality of the DUI defense Bar, primarily through providing educational seminars.

An important secondary purpose of the organization was to address the problem of insularity in the profession — the isolation of lawyers: the College would be a tool with which attorneys across the country could share information, ideas and experiences.

I am proud to say that I was one of those 11 original founders, and soon after served as Dean and on its Board of Regents. For each of us, the College was a true labor of love.

Soon after the College's inception, the first national seminar was held at Harvard Law School. It was an intense 3-day series of lectures, demonstrations and workshops, featuring a faculty of 22 of the top lawyers, scientists and forensic toxicologists in the field. The experiment was a huge success, and has been repeated every July at Harvard for the past 20 years. In fact, the College’s governing Board of Regents soon expanded this educational effort by creating a second annual seminar in conjunction with the National Association of Criminal Defense Attorneys.  This proved another resounding success: in recent sessions held in Las Vegas, there have been over 500 lawyers attending from all over the country.  A fourth annual seminar was soon added:  "Mastering Scientific Evidence".

The National College for DUI Defense also created an internet website, along with an email discussion group where attorneys could share information and ideas. There are currently hundreds of members across the country (and in other countries) using this forum — and discovering that what one lawyer in Texas has found effective in dealing with DUI sobriety checkpoints can be helpful to another in Oregon.  In addition, the College website contains information for laymen on such topics as state DUI laws and finding a DUI defense attorney, information concerning upcoming College seminars, as well an extensive online library of legal and scientific literature on DUI-related subjects for attorneys.

Having provided the means to develop greater skills in this demanding field, the College next addressed the need to recognize those lawyers who had achieved the highest levels of competence. Within recent years, they began certifying attorneys as specialists in DUI defense. In order to achieve Board-certification, an applicant must satisfy demanding requirements of practice and trial experience, as well as pass intensive written and oral examinations.

Most recently, the College has been successful in applying to the American Bar Association for recognition of a new legal specialty: DUI Defense. After considerable study, the ABA went further and recognized the National College for DUI Defense as the sole organization authorized to certify attorneys as specialists in this new field.

The College maintains its headquarters in Montgomery, Alabama, and currently has a membership of over 1300 attorneys.
 

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