I pride myself on not being a “plea escort service.” I heard that term years ago at a National DUI Defense College meeting and it has stuck with me since. Any lawyer can plead you out to a DUI charge, and most will. A very select few lawyers are actually capable of stepping into a courtroom and trying a case successfully to a “not guilty” verdict. When I meet a potential client I explain to them up front that almost any lawyer they choose can negotiate for them a plea agreement to the minimum mandatory penalty for the DUI offense they are charged with. Prosecutors and police departments love plea agreements. No effort, no risk, no problem on their end. If the cost of a lawyer is your only concern, and you don’t care to win your case, hire the cheapest plea escort service you can find.
But you can’t win a case if you don’t try it. When you plead out your case, you pass on each and every opportunity you had to win it. A police report is an arresting officer’s very best version of his case. That police report is not allowed as evidence at trial, and an arresting officer’s version of events very rarely survives cross examination at trial and stands for the Judge or Jury as the absolute truth of what happened. Writing a report is much different than testifying in a Courtroom and proving the allegations leading to an arrest
Even the toughest cases should be tried, because after trial, if a guilty verdict is returned, the sentence imposed by the Court is most often the exact same sentence the plea escort service would have negotiated for you short of trial. (A “continuance without a finding” in MA – C.W.O.F. – counts forever as your first OUI offense and is therefore the same as a “guilty’ finding in that respect). Very few judges in MA or NH penalize a defendant, in terms of post-conviction sentence conditions, for exercising their right to trial, especially when they are well represented and trying a case effectively and efficiently. In fact, in my experience, most Judges are pleasantly surprised and pleased to preside over a DUI trial where the defense lawyer is experienced and actually forcing the government to prove each and every element of the offense. Judges are all former practicing lawyers, often former prosecutors or defense lawyers, and they understand the presumption of innocence, the right to remain silent, and the government’s burden of proof beyond a reasonable doubt.
What happens when you actually go to trial and decide to protect your rights with an experienced DUI Defense Lawyer? You allow for the opportunity to prevail. You can win, because you showed up, played by the rules, and forced the fumble:
The prosecutor admits that the breath test operator failed to disclose his narrative report in violation of a discovery order and the .15 breath test is excluded in the middle of a trial, resulting in a dismissal of the DWI Charge;
The rollover accident OUI case is tried before a jury, and the Judge directs a verdict in favor of the defense, when the government fails to establish that a the road in question is a “public way;”
The Jury hearing evidence of a .24 Breath test, relies upon the defense theory that the accuracy of any breath test is invalid, if a burp or hiccup can contaminate a breath test result, and the defendant suffers from G.E.R.D.;
The arresting officer’s narrative report clearly indicates evidence of alcohol impairment, but he cannot communicate that to a jury and his primary civilian witness is utterly incredible;
The breath test evidence is excluded on the day of trial because the defense discovers a violation of the Code of Massachusetts Regulations (CMR) that was developed over months of preparation and challenges raised in similar cases;
The Court orders the dismissal of the OUI charge when the government fails to provide adequate notice of the criminal OUI offense in violation of the “no fix-it” citation statute;
The Court rules that, the officer is credible in his assessment of the driver’s impairment, but he finds the defendant equally credible in his claims that he was not impaired by alcohol and renders a “not guilty” verdict, stating the “tie goes to the runner.”
This above list could go on and on, (I’ve tried several hundred DUI cases) and it is also true that any experience DUI Defense trial lawyer knows that any case tried to a Judge or Jury can result in a “guilty” finding. There are no guarantees, only opportunities. Trials are adversary endeavors not meant to played half-heartedly. A trial is a rock fight, and someone must lose and be bloodied in the end. But if you are willingly to engage in the fight, and arm yourself with the best protection, you can win.