What do defense lawyers do? Well, in the context of a DUI charge, a defense lawyer should do everything he or she can to protect the client.
I begin every client intake meeting by explaining Attorney/Client privilege, confidentiality and the fact that I am in the Protection business, not the Judgment business.
A DUI defense lawyer’s only job is to protect the interests of the client within the ethical rules that apply to each case. It is the prosecutor’s job to prove the case and it is the Court’s job to preside over the proceedings, make appropriate rulings of law and impose sentence. A defense lawyer must consider such factors as potential loss of license, potential incarceration, fines, alcohol education/counseling and reciprocity issues that may apply across jurisdictions, when the client is a resident of Massachusetts, for instance, and he/she is facing a DUI charge in New Hampshire. A defense lawyer must properly advise a client of potential consequences so a client can make voluntary decisions regarding his/her case. The classic example is whether a client decides to proceed to trial or enter a plea. This can only be done when a defense lawyer has provided the best information and advice to allow the client to make an intelligent decision, knowing the facts, the law and the risks of proceeding to trial versus entering a plea.
A DUI defense lawyer will act as a shield for his client against the prosecution, and he will act as communicator for his client to the Court. The defense lawyer should seek to protect his client by challenging the prosecution at every turn on every possible issue. A defense lawyer should challenge the admissibility of evidence and assert all constitutional and/or statutory and/or administrative rule based violations. For example:
- Did the arresting police officer have reasonable articulable factual grounds to initially stop and seize the client:
- Did the arresting officer have probable cause to arrest the client;
- Were field sobriety tests administered according to the officer’s training and the National Highway Traffic Safety Administration (NHTSA) standards;
- Can evidence of a field sobriety test be excluded, Horizontal Gaze Nystagmus evidence is admissible in New Hampshire, but not in Massachusetts;
- Is evidence that the client refused to participate in field sobriety tests or a breath test admissible;
- Was the breath test accurate, and were the proper procedures followed during the administration of the test, to include and observation period following correct implied consent process;
- Is the blood test admissible, whether it be a hospital lab test, or a forensic sample from the state laboratory;
- Can the prosecution prove a prior offense, can a prior offense be vacated because of a faulty plea process;
- What is the penalty that applies to this particular case if there is a conviction following plea or trial;
- BE PREPARED TO TRY THE DUI CASE TO VERDICT BEFORE A JUDGE OR JURY!
Negotiations with the prosecution, on behalf of a client, are constantly taking place, even as the defense lawyer challenges the government’s case. Negotiating from a position of strength benefits the client. When a defense lawyer is prepared to try a DUI case to verdict, and the prosecution knows it, the prospect for a favorable plea resolution increases. When a plea option does not benefit the client, and a case must go to trial, the defense lawyer becomes the ultimate advocate, trying a case to verdict, hopefully a “not guilty” verdict.
