How to Test Drive a DUI Lawyer
Hiring a DUI lawyer is tough. So many choices, so many promises, so little hard data on what DUI attorneys can actually achieve. If you’ve never had a DUI and don’t want to ask your friends awkward questions, you may feel like you’re flying blind.
Test Drive Your DUI Attorney at an ALS HearingIn Georgia, most DUI cases involve both a criminal prosecution and an "Administrative License Suspension" case. If the arresting officer took your license and/or gave you a temporary driver's license (also known as a DDS Form 1205), then you are facing both criminal and administrative proceedings. Here is a sample DDS-1205. The Georgia State Patrol has begun using a slightly different form, which is filled out by computer rather than by hand.
The administrative process unfolds quickly. You have ten business days from your arrest to file a petition to keep driving. An administrative hearing will occur within two to six weeks of this petition. Continuances are hard to get. The administrative process is important, especially if the arresting officer claims you refused to take a blood or breath test. A ruling that you refused to take the test will result in a "hard suspension" of at least one year. During this period, you cannot even get a restricted license. A bad outcome in the administrative process can be worse than a DUI conviction.
However, the administrative process is much simpler than the criminal process. There are no juries to select, no pretrial motions to file, and rarely any witnesses other than the arresting officer. For this reason, most attorneys will handle an ALS hearing for much lower fees than they charge for a DUI trial. My fee for conducting an administrative hearing in Henry County is $400 plus the filing fee. In neighboring counties, I usually charge $600 plus the filing fee.
The administrative process can give you a good feel for how effective an attorney is. If you like your attorney, you can retain him for your criminal case. If not, you will see plenty of other attorneys at the administrative hearing, and can contact them.
DUI Specialists Are Usually a WasteSeveral years ago, I had a DUI client who had a job in the service industries. I charged her my standard fee for first-time DUIs: $900 plus an additional $1,200 if I had to prepare for trial. It soon became apparent that a jury trial was a bad idea. Her breath test came back at nearly twice the legal limit. There was a video of her arrest in which she was unsteady on her feet. If she went to trial, a jury would almost certainly convict her, and the judge would sentence her to significantly more jail time than required by the plea offer. She took my advice and pled guilty. She probably paid me a couple weeks of her wages, but my fee caused her no great hardship.
Six months later, she got a second DUI and hired a DUI specialist from a different county. She was impressed that he "knew the judge," and borrowed $10,000 to pay him. After filing a few boilerplate motions and viewing the video, the DUI specialist also advised her to plead guilty. She received the same plea offer any competent attorney would have obtained. Months after entering her plea, the client declared bankruptcy.
There certainly is a place for DUI specialists in the world, just like there is a place for luxury cars and four-star hotels. If you can pay $6,000 to $25,000 for a DUI lawyer and not really miss the money, then, by all means, hire a DUI specialist. There are some fine ones out there, and your odds of beating your DUI may be slightly higher with an accomplished DUI specialist than with a general criminal defense attorney.
However, for most people, it makes no more sense to hire a DUI specialist than to buy a Mercedes S500 with all the latest safety features. The reasons are similar. Your odds of surviving a serious accident in an S500 are slightly higher than your odds of surviving the same accident in a Honda Accord. But you are unlikely to be involved in a serious accident, and the Honda's safety systems are quite effective. Fortunately, while it is impossible to know whether you will be involved in a serious accident when you buy a car, it is fairly easy to gauge the complexity of a DUI case before you hire an attorney.
Refusal CasesIf you did not take a blood or breath test, your DUI case is pretty straight forward. If there is a video, the main question is whether you look intoxicated on it. If there isn't a video, it comes down to the credibility of the arresting officer. Any competent trial attorney who puts a few hours into trial preparation can do a good job with this type of a case. In these types of cases, jury selection and cross-examination are more important than DUI-specific knowledge. Any diligent attorney can learn the protocols for conducting field sobriety examinations in a few hours. (They are designed for cops, anyone who can pass the bar exam can ace an open note test on them). There is no need for a DUI specialist in this type of a case.
Cases with a Chemical TestEven if you took a blood or breath test, the chances that a DUI specialist will improve your situation are still slim. If the test came out below 0.080%, you cannot be convicted of DUI based on your alcohol concentration alone. This type of case is akin to a refusal case. The key issues are: (1) whether you looked intoxicated on the video and; (2) in the absence of a video, whether the officer is credible.
If the test came out above 0.100% and the officer read you implied consent (more on this later), a DUI specialist adds little value. Juries almost always convict in these kinds of cases unless there is a reasonable doubt about whether you drove a motor vehicle. If you were captured on video pulling over and exiting the driver's seat, the officer read implied consent, and the chemical test came back over 0.100%, you should almost certainly plead guilty. Even if you spend months of your earnings on lawyers, in all probability, this will only buy you a guilty verdict and extra jail time. Your best bet is to hire a lawyer who is good with plea negotiation and mitigating evidence.
Implied consent is a legal-sounding spiel that an officer is required to read before giving you a quantitative breath or blood test. It begins "Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year." If the officer did not read implied consent before you were taken to the jail or precinct for chemical testing, the chemical test cannot be introduced. This is a potential defense, but isn't rocket science. Any competent criminal defense attorney knows this.
Cases with a chemical test between 0.080% and 0.085% are somewhat complex. This result is over the legal limit, but within the margin of error of the breath testing equipment. In my experience, the best thing to do in these cases is to subpoena George Tilsen, the GBI scientist who calibrates the State's breath testing equipment. He is an articulate scientist, he testifies truthfully, and he will freely admit that the breath testing equipment has a margin of error of 0.005%. He can also be subpoenaed for a whopping $6 if the subpoena is served by certified mail. Because he works for the state, he is more credible than a private expert witness.
The most complex DUI cases are those where the officer read implied consent and the chemical test result was between 0.085% and 0.099%. Even if these results are discounted by the 0.005% margin of error, they are still over the legal limit. To beat this type of test, you must get the jury to question the accuracy of the breath testing process. This is an uphill fight, and even if you hire an accomplished "DUI guru" you will probably be convicted. However, hiring a DUI specialist and credible expert witnesses will give you a fighting chance of acquittal. My hunch is, in these types of cases, a DUI specialist may increase your odds of acquittal from about 15% (with
Motions to SuppressFinally, it is true that some DUI cases can be won through arguing a motion to suppress. However, this is no reason to hire a DUI specialist. Fourth Amendment issues come up in all different kinds of criminal cases, from murder cases to drug cases to DUIs. I learned a great deal about Fourth Amendment law handling drug cases. A DUI specialist is no more knowledgeable about suppression issues than a good criminal defense attorney.
The bottom line is most DUI defendants should not hire a DUI specialist. Even affluent DUI defendants should carefully consider what value a DUI specialist can add to their case.