By James L. Dam

Lawyers who represent drunk driving defendants — especially those who don’t specialize in the area — are frequently making some big mistakes that harm their clients, experts warn. Lawyers Weekly USA conducted extensive interviews with the leading drunk driving defense experts in the country, and asked them for the 10 mistakes that they see defense lawyers make most. Here’s what they told us:

1. Assuming the Case Can’t Be Won: Assuming the case can’t be won — and pleading guilty — is “the number-one all-time mistake,” says Leonard Stamm of Greenbelt, Maryland. Many lawyers give up after getting the breath test result and the police report. They “do the guilty-plea shuffle,” says Jess Paul of Indianapolis, a regent of the National College for DUI Defense. Of course a more aggressive approach costs more, and some clients can’t afford it. But many clients can afford to pay, and their lawyers should be doing more and charging more, experts say. “If a lawyer doesn’t plan on spending the time to prepare and try the case and quotes a fee of $500, he’s just asking for a malpractice claim,” says Reese Joye of North Charleston, South Carolina, co-author of 101 Ways to Avoid a Drunk Driving Conviction. Lawyers should be “charging enough to take their clients’ cases seriously,” advises Roderick Kennedy, a judge in Albuquer-que, New Mexico. The results of breath tests can often be overcome with a “Motion to Suppress,” with cross-examination of the state’s expert or the police officer, or with evidence of the defendant’s sobriety. “The jury knows that a thermometer might say an oven is 360 degrees, but if you put your hand in the oven and don’t feel any heat, the thermometer is wrong,” says John Henry Hingson of Portland, Oregon, a former president of the National Association of Criminal Defense Lawyers. Lawyers frequently overestimate the cost and difficulty of preparing and trying a drunk driving case, says Ronald Cole of Anderson, South Carolina, author of a drunk driving defense manual. He says such a case “doesn’t require a big budget,” at least if an expert witness isn’t hired. Lawyers who plead guilty too easily have another problem: They lose credibility when negotiating future cases with the prosecutor, says David Chapman of Tacoma, Washington. With a more aggressive approach, a lawyer “will get the breaks when they are available,” says Stephen Trezza of Tucson, Arizona.

2.Not Finding Out If the Breath Test Rules Were Followed: Breath test results can be attacked on the grounds that the state’s technical rules for administering the test weren’t followed properly, experts say. But many lawyers overlook this. “Lawyers just don’t read the statute and regulations,” says John Tarantino of Providence, Rhode Island, editor of DWI Journal: Law & Science. A violation of the rules can be introduced as evidence that the results are unreliable, and can also be used to exclude them altogether. There’s a trend toward excluding test results for even very technical violations, experts say. Most states have detailed requirements for how the test is given, how the machine is calibrated and maintained, how the operator is certified and how records are kept. A common violation is the officer’s failure to observe the defendant for a certain period of time — usually 15 or 20 minutes — before the test is given. The officer is supposed to make sure the defendant doesn’t burp, hiccup or regurgitate during this time, since these actions can throw off the test results. Courts have excluded test results because of this violation even where there is no evidence that the defendant actually burped, hiccupped or regurgitated. They have also thrown out test results where:

• • • • * A copy of the test results wasn’t mailed to the defendant;
      • * The test operator’s license or certification had expired;
      • * The machine’s mouthpiece was not changed before the test;
      • * The machine wasn’t inspected as often as required;
      • * There was no record of the temperature of the solution used in calibrating the machine;
      • * The test wasn’t sufficiently supervised by a “senior operator.”

To look for a violation, lawyers should get copies of the machine’s “calibration log,” “usage log” and maintenance re-cords, as well as the operator’s certification or license.  Many lawyers don’t ask for these re-cords, says Lawrence Taylor of Long Beach California, author of the treatise Drunk Driving Defense. “They just get the complaint and the arrest report and that’s the end of it.”

3. Not Visiting the Scene Of the Arrest: Visiting the scene of the arrest is absolutely critical — but many lawyers don’t do it, experts say.  “It’s the one thing that makes the most difference in the cases I try,” says Flem Whited of Daytona Beach, Florida, editor of the Drinking/Driving Law Letter.  Going to the scene may allow you to find things that could have made the roadside tests difficult to perform, such as heavy traffic going by at 65 miles per hour or gravel on the pavement.  You also might see things that would explain erratic driving, such as a winding road, says Richard Zisson of Wellesley, Massachusetts.  When you cross-examine the police officer, you’ll be able to ask about these things much more confidently if you’ve seen them yourself, says Whited.  You also might be able to catch a physical impossibility in the officer’s testimony, says Zisson.  For example, if the officer says the defendant weaved a certain number of times while driving at a certain speed from Pleasant Street to Maple Street, you might take some measurements and find that there simply wasn’t enough time for that to happen. Zisson says, “You do it on a blackboard and it’s beautiful.”  Whited notes that in a recent case, the officer claimed the defendant drove with two wheels on the curb for a certain distance before running into a street lamp. By visiting the scene, he found there were street signs in the way that would have made this impossible.   Visiting the scene also allows you to throw details into your cross-examination — such as the position of a tree or a fire hydrant — that will help persuade the jury that you really know what you’re talking about, says Whited.  In some cases you may want to take photographs or a video of the scene to show the jury, experts say.  Francis Moore of Red Bank, New Jersey, a regent of the National College for DUI Defense, suggests taking a photograph of the spot where the roadside tests were given and including in the photo a level 8-foot board resting on bricks to show the slant in the road, a factor that makes the tests more difficult to perform.  He suggests putting a carpenter’s level on the board; the greater the number of bricks needed at one end to make the board level, the more the road slants.

4.Not Fighting the License Suspension: Many lawyers make the mistake of not contesting a license suspension because they don’t realize that (1) these hearings can often be won, and (2) even if you lose, you have an opportunity to “depose” the arresting officer.  “Lawyers fail to appreciate that, by God, these things can be won,” says Douglas Cowan of Bellevue, Washington, co-author of a book on his state’s drunk driving law.  License suspensions are imposed in every state for refusing a breath test and in 39 states for failing a test. It appears that defendants can get a hearing in every state if they request one.  These hearings can often be won based on technical defenses, experts say, including:

• • • • * The defendant wasn’t properly advised of his rights (because the officer’s explanation of the state’s “implied consent law” was defective in some way);
      • * The officer failed to show up at the hearing;
      • * The “stop” or arrest wasn’t justified;
      • * The defendant wasn’t allowed an independent test;
      • * The test wasn’t given in time;
      • * The defendant wasn’t allowed to call an attorney;
      • * The officer was outside his jurisdiction;
      • * The officer’s report wasn’t sworn;
      • * There was no certificate by the machine operator;
      • * The form wasn’t dated;
      • * A temporary license wasn’t provided;
      • * The defendant didn’t “refuse” the test (because he had asthma, the mouthpiece was clogged, he was confused about his rights, etc.); and
      • * There’s no proof the defendant was driving. Some of these defenses will work in some states but not in others. Also, the “batting averages” of defense lawyers vary from state to state. It appears that lawyers in some states win more than 60% of their hearings, while in other states they win less than 10%.  Even if the defendant loses at the hearing, it can still be a gold mine as a deposition of the officer, experts say.

At the hearing the officer is usually unprepared and uncoached. Generally he can be asked about every aspect of the arrest, including the roadside tests. The hearing transcript can be used to limit his testimony or to impeach him at a suppression hearing or at trial.  Also, if his testimony shows weaknesses in the state’s case, or if it’s inconsistent with his report, it can be used in plea bargaining.  (For an extensive discussion of license suspension hearings, see 96 LWUSA 141; Search word for LWUSA On-Line: Mauk-awsher.)

5.Not Filing a ‘Probable Cause’ Motion: Lawyers should file a pre-trial motion challenging “probable cause” as to the stop and the arrest in virtually every case, experts say.  Like suspension hearings, these motions can be won — and even if you lose, they provide another opportunity to “depose” the arresting officer.  “Many lawyers don’t bring any pre-trial motions but just go to trial,” says Cowan’s co-author, Steven Hayne of Bellevue, Washington. “This is a huge mistake.”  “It’s the most common mistake I see,” says Mark Gardner of Painesville, Ohio.  The motions don’t succeed very often. In general, a police stop is justified if there was a “reasonable and articulable suspicion” that a crime was being committed. It’s usually enough that the defendant weaved. For the arrest, it’s usually enough that the defendant failed the roadside tests.  However, “You never know what might click with the judge,” says Michael Snure of Winter Park, Florida.  In some cases, the police officer will be inexperienced and won’t testify to facts that justify the stop, says Trezza. For example, he may testify that he only saw the defendant weaving a couple of times within the lane.  But even if you lose, the hearing on the motion “is a great form of discovery,” says Moore.  As with the suspension hearing, the officer can be asked a broad range of questions and his testimony can be used at trial as well as in plea bargaining.  In many cases, an officer’s testimony will be different at the pre-trial hearing from what it was at the suspension hearing, and it will change again at trial, says Hingson. “The more times the officer is under oath the better.”

6. Not Using the ‘Training Manual’ for Roadside Tests: The “training manual” with which the arresting officer learned to perform field sobriety tests is powerful evidence that defense lawyers frequently overlook, experts say.  If the officer didn’t follow the manual’s directions completely, this can be used to attack the tests’ validity. This can be done at the suspension hearing, in a pre-trial motion to exclude the evidence and at trial.  “The officer will do something inconsistent with the materials 99.9% of the time,” says Zisson.  The biggest mistake is that officers don’t use objective scoring, says Taylor. The manuals explain how to score each test and how to combine the results to get a final score, but most officers just decide subjectively whether the person failed the tests, he says.  Officers also frequently ask the driver to do more than the manual requires, says Donald Day of Naples, Florida.  For example, with the one-leg stand test, some officers tell the driver to stand for longer than the manual specifies. Others require drivers to keep their head tilted back or their eyes closed.  If the officer used a test that isn’t in the manual, you can argue that the test is per se invalid, experts say.  Most state manuals include only three tests:

(1) “Walk the line” (also called “walk and turn” or “heel to toe”);

(2) One-leg stand; and

(3) Horizontal gaze nystagmus.

Common tests that officers use that aren’t in the manuals include:

* “Finger to nose”;

* Alphabet tests;

* Counting tests;

* Picking up coins; and

* Balancing tests.

You can subpoena the officer for the manual or you can get a copy from your state’s traffic safety division or whatever institution trained the officer, says Day.  Most state manuals are based on a manual issued by the National Highway Traffic Safety Administration. Lawyers can use this manual if their state doesn’t have its own, says Taylor. They may prefer to use it anyway since it may be more detailed then the state version.  The manual is “DWI Detection and Standardized Field Sobriety Testing,” DOT-HS-808-112. It can be obtained from the National Technical Information Service in Springfield, Virginia by calling 703-487-4640 or faxing a request to 703-487-4815.  (For an extensive discussion of how to attack roadside tests with manuals and other materials, see 94 LWUSA 537; Search word for LWUSA On-Line: Paver.)

7. Ignoring the ‘Extra’ Penalties: Another mistake is failing to explain to the client all the effects a conviction might have in addition to a fine or jail time, such as a license suspension or revocation, higher insurance rates, loss of a job and the inability to rent a car. “Not fully investigating and advising the client about the administrative sanctions is malpractice,” says William O’Neil of Myrtle Beach, South Carolina. “I see this over and over,” says Bradley Koffel of Columbus, Ohio.  All the consequences of a conviction should be explained to the client and taken into account when deciding whether to plead guilty, says Hayne.

8. Trying to Make The Officer Sound Like a Liar: One of the biggest mistakes defense lawyers make is “trying to make the cop a liar when ‘simply being mistaken this one time’ will suffice,” says Robert Chestney of Atlanta. Jurors are reluctant to believe that an officer is lying, experts agree.  And an officer will never admit that he’s lying even if he is, says Snure.  A better approach is “to meld the cop’s and the client’s stories together,” says Cowan.  According to Zisson, “Generally the theme should be that the case is about a cop jumping to conclusions and making mistakes.”  Taylor suggests beginning the cross-examination of the officer by asking, “You testified that the defendant was under the influence of alcohol. Is it possible you are wrong?”

9.Putting the Client On the Stand: “A lot of lawyers subscribe to the old wives’ tale that you should always put the client on the stand in a DUI case,” says Hayne.  However, he says, “Clients typically are inexperienced witnesses and will act nervous and appear deceitful.”  Chestney adds, “Putting the client on the stand shifts the focus of the jury from ‘Is the state’s case really strong enough to remove all reasonable doubt?’ to ‘Is this person being 100% honest with me?’ It forces the jury to choose between the cop and the defendant. And it allows the prosecutor to do what he lives for — to make your client look like he’s hiding something.”  The better practice is to have the client testify only when you need him to contradict something the officer said, says Victor Pellegrino of Tampa, Florida.  For example, if the officer claims the defendant admitted to having had 10 beers, you may need him to testify that he never said this.

10. Not Consulting A Specialist: A lawyer who isn’t a specialist in drunk driving should consult someone who is, experts say.  You should call a specialist and arrange to spend an hour or so talking with him or her about the case, says Chapman.  The specialist should be able to spot potential defenses, outline what investigation and discovery should be done and what motions should be filed, and generally plot strategy.  Today, a drunk driving case “is not something one should approach without getting good advice from people who know what they’re doing,” says Stephen Komie of Chicago.  He adds, “DUI’s have gone from a relatively minor case to a complex case as a result of the reforms of the ’80’s and ’90’s.”  Norman Teague of Meriden, Connecticut agrees. He says these cases “have gotten sophisticated. If in 1983 the skill level required was ‘1,’ it’s now ‘8’ or ‘9.’”