“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.

The following is from a presiding justice’s dissenting opinion in a Pennsylvania appellate decision affirming a DUI conviction:

I must vigorously dissent from the well-written opinion of the majority, as it seems we are coming perilously close to turning a blind eye to questionable conduct by our police officers. While I acknowledge that our police officers are charged with the awesome and sometimes onerous responsibility of protecting the public, I cannot sanction the whisperings of the majority that that protection comes at the deprivation of the constitutional rights of citizenship. We do not want a police state, and it seems we are on the precipice of becoming one, in the name of DUI. I suggest that the Court, and the police, can ill afford to sanction this type of conduct.

(Emphasis added.) Fortunately, the Pennsylvania Supreme Court reversed this lower court ruling a few days ago and, in so doing, agreed with the dissenting justice’s comments. Comes the dawn?

(Thanks to Fred Slone and Troy McKinney.)

In response to my recent post ("MADDness") about the failure of the two-decades-old "War on Drunk Driving", I’ve been reminded by readers that it’s one thing to say the system doesn’t work — and quite another to offer solutions. Point well taken, so here goes… But before looking at the solution, let’s first understand the problem. One does not deal with 1000s of DUI clients over the years without drawing certain conclusions:

1. The system, clearly, does not work: despite unfair laws, constitutional violations and increasingly harsh penalties, the problem remains…and people continue to die on the highways.

2. Playing games with statistics, as MADD and the government are so fond of doing, only obscures the problem.

3. The problem is not black-and-white, but involves shades of gray. It is convenient to punish anyone with a .08% blood-alcohol concentration, but neither fair nor productive. It is easy to lump all offenders into the same category of "drunk drivers" and simply adjust jail time by a reading on a machine, but neither fair nor productive.

4. You cannot simply identify what the problem is ("drunk drivers are dangerous"), but who the problem is. The problem is not people who drive with .08% BAC or higher, but people who represent a real danger to others on the highway. Who are they?

The problem is the person who severely abuses alcohol and chooses to drive. You can call him an "alcoholic", but it has been my experience in dealing with those 1000s of clients that there are different kinds of "alcoholics" and that using a simple label is no answer (we do love to put things in neat categories). Statistics repeatedly show that the vastly disproportionate majority of alcohol-caused injuries and deaths are caused by a few "problem drinkers" (for want of a better term). Thus, the first objective in any solution is to identify these individuals. In my experience, they can usually be identified by a combination of factors:

1. Their blood-alcohol level is not just high — it is very high, say .16% to .30% or more.

2. This is probably not the first DUI — and prior incidents are likely to be relatively recent.

3. There is a genetic flag: the individual is likely to have one or two "alcoholic" parents.

All right, we’ve identified some markers for who the problem is , but what do we do with them? To begin, let’s understand what we don’t do: we don’t hit them with stiff jail sentences. If we do, we simply remove the person from society for a few days or months — and on the day he gets out, he gets in his car and drives directly to a bar. What has been accomplished? Is society being protected — or are we simply punishing people for drinking too much? Since the punishment model clearly doesn’t work for the problem drinker, we must consider the other criminal justice models: isolation, deterrence and rehabilitation.

1. Isolation. Yes, we can put the problem drinker in jail for a few months or even a few years, and we are safe from him for that period. But can we really afford to house tens of thousands more inmates? For how long? And what happens when they get out? For that matter, given the evidence, aren’t we punishing them for a genetic condition?

2. Deterrence. How do you deter an "alcoholic"?

3. Rehabilitation. Once the favored approach in the criminal justice system, rehabilitation fell into widespread disfavor many years ago. Yet….Yet, this would appear to be the only logical approach with problem drinkers.

Ok, but what about the driver who is not a problem drinker but who is simply impaired from drinking too much?

Answer: Treat him like any other misdemeanant.

Statistically, we know he is unlikely to cause serious injury or death, but there is undeniably some risk there. Can this individual be deterred from such future conduct? Unlike with the "alcoholic", statistics show he can. Thus, it may be fair and productive to impose a fine on the typical first-offender, perhaps even suspend his driver’s license for a short period; if a high blood-alcohol level is involved, say .15%, the punishment may include a 2-day jail term. But certainly not the punishments so destructive to families and careers that are now being administered to all caught up in the dragnet.

While we’re at it, a refreshing approach — and a healthy one for society — would be to reinstate constitutional rights in DUI cases: due process, presumptions of guilt, denial of right to counsel, double jeopardy, the 5th Amendment right against self-incrimination, the right to confront witnesses, 4th Amendment roadblock violations, ad nauseum. (See "The DUI Exception to the Constitution".)

Does all of this finally solve the drunk driving problem? No: people will always drink and drive. But it will focus on the real threat — the truly dangerous driver — rather than on drinking and driving per se. And, in the process, reinstate the essential fairness and due process that has been slowly removed from the criminal justice system.

A key witness in most DUI trials is the prosecution’s crime lab blood-alcohol expert, often called a forensic toxicologist.  He will explain to the jury what the breath or blood test results were and what they mean; what the probable blood-alcohol level was when the defendant was driving; and that the breathalyzer was properly maintained, calibrated and in proper working order at the time of the test.  To say the least, the honesty and accuracy of this expert’s testimony under oath is critical to the outcome of the trial.

Unfortunately, this witness is often less than honest and objective in his testimony.  As a law enforcement employee, he sees his job as helping the prosecutor to secure a conviction — and commonly tailors his testimony accordingly.

The same is true of phlebotomists (technicians who draw a blood from the suspect) who testify as to the procedures used for drawing the blood,  identification of the blood sample, etc.  The expertise and honesty of this witness is equally critical in a DUI trial.

The following is a complete and verbatum (emphasis in the original) copy of a set of instructions given by the San Diego Police Department to their blood-alcohol technicians testifying in a drunk driving trial (presumably, a different script exists for toxicologists):

                                             COURT TESTIMONY

You will be asked your name.

You do not have to remember drawing [blood from] the particular defendant.  Just say you draw many patients each day you work and it is impossible to remember each one.

You may be asked how you draw the blood.  It is the standard procedure you follow for ALL blood draws, EXCEPT that you use a NON-ALCOHOLIC antiseptic wipe (Benzalkolium) to cleanse the phlebotomy site.  You ALWAYS follow the same procedure for every blood draw.  The blood is drawn into grey top tubes provided by the San Diego Police Department.  The tubes contain an anticoagulent (Potassium Oxylate) and a preservative (Sodium Fluoride).  You check the tube for the presence of a loose, slightly pink powder before you use it.  After you fill the tube with blood, you invert the tube 10 times to mix the blood with the anticoagulent/preservative.  You will always mix any tube with an anticoagulent 10 times (you count the inversions).  The important things to remember is that you always follow the same procedure, so even though you don’t remember this particular individual, you know that you drew the person following our standard procedure.

The suspect is identified by the police officer and, when possible, you check the ID or ask the suspect their name.  The police officer completes the label with the suspect’s name, DOB, etc.  You put your name, date, draw time, and place on the label and place the label on the grey top tube.  You then place the grey top tube in the plastic chain-of-custody tube, put the cap on it, and seal it with the sealing tape provided by the SDPD.  You then hand it to the officer and he takes charge of it.

These instructions on what to say in trial are given to law enforcement witnesses  testifying under oath.  The witnesses are told to “testify” as instructed — not as to what they actually did and what they know to be true in a specific case. 

(Thanks to San Diego attorney Cole Casey.  A fellow attorney in a recent DUI trial asked a phlebotomist outside the courtroom what he was reading just before going in to testify; surprisingly, the witness showed him — and the attorney shared the document with Mr. Casey.)

An increasing number of police officers are using pre-written arrest reports in drunk driving cases. In other words, they are writing out a batch of phony reports — including driving symptoms, slurred speech, failed field sobriety tests, admissions of drinking — and then just filling in the names, dates, etc., when they actually make an arrest.

Saves a lot of time.

In this computer age, however, this practice is commonly abbreviated even further by using computer templates: word processing forms which have all of the "facts" already entered, with blanks to fill in for name, date, etc.

DUI Suspects May Go Free Due To Questionable Arrest Reports

Orlando, FL November 16 — 9 Investigates has uncovered dozens of DUI suspects that may go free because sheriff's deputies appear to be using pre-written arrest reports. There are some experts who believe this may even amount to perjury.

When a deputy makes a DUI bust, the officer writes an arrest report. It's the official record of what the deputy says happened. But Eyewitness News has uncovered dozens of Orange County DUI arrest reports that apparently have come from pre-written templates. One report, for instance, says the suspect "stumbled slightly when walking and swayed moderately … with a three inch to five inch orbital rotation/sway." At least ten reports, written by the same deputy over a six-month period, use the exact same phrase. Even reports written by other deputies contain that exact phrase.

In many reports, the deputy noticed the "strong odor of an alcoholic beverage within my interior cab." That exact phrase appears in report after report. And it's there whether the suspect's blood alcohol content was anywhere from .03 to .16. 9 Investigates found 11 other reports, written by a different deputy, that use those exact words, again, no matter how much the suspect had to drink.

"It just doesn't smell right," said DUI defense attorney Stu Hyman. "It's a sad state of affairs when somebody hasn't even committed the offense yet, but the report has already been written." 9 Investigates found one deputy whose suspects always do an "orbital rotation" and always "counter-clockwise." Five deputies always leave their suspects in the car for exactly five minutes before smelling alcohol. In one case, a suspect was described as "he/she."

It all leads Hyman to believe the reports were pre-written. "Why is it that everyone is swaying three to five inches? Why isn't it two to eight? Why not one to seven inches?" questioned Hyman….

9 Investigates found court testimony where a deputy indicated the sheriff's office has computer DUI templates. The deputy testified, "I've been told people use them. I just choose not to."

None of this comes as any surprise to experienced DUI attorneys, who are used to seeing what I have called in my book and lectures "xeroxed symptoms". This has been going on for a long time. (Years ago, I used to get a court order for copies of an arresting officer's DUI reports for the previous 30 days; when the reports became an embarrassment, the Orange County (California) D.A.'s office finally appealed and stopped the judges from issuing the orders — but never prosecuted a single officer for perjury or filing a false report.)