If you’re faced with the serious reality of a charge of drunk driving or similar offense, you may be faced with an extended loss of your license, extraordinary court costs, ongoing and random testing, rehabilitation courses or therapy, and jail time. Your life may be turned on its head.
Particularly if it’s a 1st dui, you may want to seriously consider fighting it to a finding of "not guilty". The cost of conviction is usually greater than the cost of fighting – truly. But what do you need to do to prevail?
You merely need to persuade a jury that there is a reasonable doubt as to the prosecutor or district attorney’s case, you do not need to show that your case is absolutely true or even more likely than not – generally you do not need to convince a judge, just the jury.
Let’s say the objective facts look very bad for you. You struck a pedestrian at 2 am and a passenger in your car told the police you were drunk. Add to this, a breathalyzer and a blood test, both showing you a fair amount above the legal limit. At this point, the case looks pretty bleak, right?
In fact, you might think you will certainly go down with these facts against you, and be inclined to plea bargain, with an attorney helping you get the best result you can.
But when you consider additional facts, you realize you can always find positive aspects of a person’s behavior, and change the jury's focus. If they walk into jury deliberations thinking that you caused an accident and failed sobriety tests, a guilty verdict will follow.
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What if the jurors walk into that room thinking about what a nice, polite and cooperative guy you are? Consider a couple example examples of how this can happen. In most cases there is a videotape taken at the police station, and prosecutors generally love this tool. It may protect the cops from claims of mistreatment by the defendant, and usually shows a jury just what a drunken mess the defendant really was when he was taken into custody.
But in some cases, it is just the opposite. The defendant may be polite and well spoken. If he is not slurring his words, and walking normally, with no apparent coordination problems, things begin to look much more positive.
The jury can then imagine that if any one of them had been arrested, not drunk, but sober – this is how they might behave, or at least it was a model of how to behave if you are arrested.
When I argue any case, I don't think of myself as an attorney. I think of myself as an actor or director of a play, not trite fiction, but of a true story that I want to show my audience in the way I understood it to really occur.
But there may be other holes in the prosecution. Hearken back to the fellow who struck the pedestrian at 2 am, and whose own passenger told the police he was drunk. What do you do with a case like that?
First, he had a legitimate reason to be out at 2am. He was a drummer in a local band. Yes, but aren’t local band members often heavy drinkers? In his case, contrary to the testimony of his passenger, several other people who had seen him the same evening said they had not seen him drink at all, and that this was in character for him – he typically did not drink when he played – to him it was work he took very seriously.
Second, the pedestrian he struck was released from the hospital the same evening. But more important, there was evidence that this man was under psychiatric care for suicidal tendencies, and there was testimony that the man had darted immediately in front of the defendant’s car when he was hit. The defendant, however, had enough control, both of the vehicle and his own faculties, to swerve, stop and just barely collide with the pedestrian – knocking him to the ground, but probably saving his life, through some good driving.
Suddenly, the case looks much better. But realize that the vast majority of attorneys would never get to this point. They never even considered taking the case to trial, it was all about a plea from the very beginning. Most prosecutors know this, and they know which attorneys will go to trial and which won’t, and take full advantage of it.
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In the end, many clients who probably should walk away "not guilty", are pinned with an offense on their record and very serious consequences as well.
But you say, how do get past the objective evidence of the breath and blood tests? Aren’t these conclusive? In a word – no. I confess with a BAC result of .22, unless you can show a problem with chain of custody of the evidence, it looks pretty bleak. But in the case I’ve been analyzing, the test results were .11 and .12 respectively, and there was another problem.
No tests were administered at the scene. The police saw how the accident occurred, and did not initially suspect drunk driving (this probably should have been enough to throw the case out, but a very tough judge let it go forward). It was only after the testimony of the passenger who told police the defendant was drunk at the time that the police went to his home and asked to test him.
Once he got home, however, he had no problem drinking – he needed a stiff drink after what had happened! And that is exactly what he had. The tests were invalid because they was not testing his alcohol levels at the time of the accident. Even though the judge allowed the introduction of the evidence, the jury was convinced that there was at least a reasonable doubt as to his guilt – maybe even that he truly wasn’t guilty at all.
When you’re faced with this difficult situation, don’t try to save money and hire the least expensive drunk driving attorney you can. Put the money into the fight at the level you need. Hire an attorney who will find the reasonable doubt about your guilt and lay it before a jury of your peers. There is a good chance the result will save you headaches you truly cannot afford while being able to afford the DUI attorney fees.