| Understanding the Charges and the Challenges | | | | cross-examination and a well-trained prosecutor can |
| No matter what state you practice in, no matter | | | | dig into them and make good points. How much did |
| what laws are involved, you have to be able to | | | | you make today, did you go the scene and make |
| defend your client. Every DUI case comes down to | | | | your own measurements, where you told what to |
| two major pieces of evidence against your client. | | | | say by the client, did you base your opinion on your |
| One is a field sobriety test, and the other is the | | | | interview of the client or did you conduct your own |
| Breathalyzer test, if your client chose to take it. So | | | | investigation. Sometimes the money issue can be |
| as the DUI defense practitioner, you have to be able | | | | used against you, because experts are paid to render |
| to defend your client's performance on the field | | | | their opinions. However, I think their benefits far |
| sobriety test. More importantly, you need to be able | | | | outweigh the disadvantages. |
| to effectively cross-examine the police officers both | | | | Other experts besides the accident reconstruction |
| on the administration of the test and how they | | | | expert can be involved, depending on the factors in |
| grade your client's performance. | | | | the case. You want to get a certified field sobriety |
| An example of an effective cross examination would | | | | test instructor if there was a field sobriety test |
| be to get the officer to admit that he did follow the | | | | given. You want to use the same forensic |
| proper procedure in administering the tests, i.e. he did | | | | toxicologist on the Breathalyzer. Sometimes you |
| not follow the Field Sobriety Testing Manual in one or | | | | want to use an expert for gait analysis, if the |
| more aspects such as asking the operator if he were | | | | testimony is that your client was unsteady on his or |
| injured in any way from the accident that would | | | | her feet or appeared to walking in an unusual manner |
| effect his or her ability to perform the tests. Another | | | | (the prosecution often uses the unsteadiness of your |
| effective tool relative to field sobriety tests and | | | | client at the scene as evidence of intoxication You |
| cross examination is that the officer has no baseline | | | | want to bring in a neurologist for a head injury. So |
| to assess your clients performance in another words | | | | there are four or five experts you could potentially |
| the officer has never seen your client walk, talk, | | | | use. |
| count, balance, or perform any task for that matter | | | | Considering Settlements and Plea Deals |
| so the officer cannot say he failed or passed the | | | | The trial can take three to four weeks. The length of |
| tests with any credibility when he does not even | | | | the case can be affected by the number of |
| know your client. Another point to make on cross is | | | | witnesses or the style of the prosecutor. Certain |
| that an accident can be stressful, among other | | | | judges may go faster than others. Certain juries will |
| things, and a stressful situation can cause anxiety, | | | | ask more questions than others. The major factors |
| nervousness and and lack of attentiveness which can | | | | determining the speed of a case are the size of the |
| effect ones performance on the field sobriety tests | | | | case and the witness list. If the case is a good case, |
| in a negative fashion. | | | | favorable to your client, you can probably move it |
| Differences in strategy arise between a non-homicide | | | | along fairly quickly. However, many times, lengthening |
| DUI charge and one where vehicular homicide is | | | | the time helps in cases like this, allowing people's |
| involved. In your normal drunk driving case, | | | | emotions to calm down. |
| non-motor vehicular homicide, the defense comes | | | | I think it is always best to initiate a settlement prior |
| down to the field sobriety test, and maybe a | | | | to the trial. You do not want to show up on the day |
| Breathalyzer reading. However, in DUI homicide cases, | | | | of the trial and try to work it out, because you are |
| the majority of the clients are taken to the hospital | | | | not going to get your best deal. The DA has |
| as a result of the accident. There is no Breathalyzer | | | | prepared the case, has prepared the victim's family |
| and no field sobriety test, but there is blood work so | | | | for a trial, the judge is ready and the jurors are |
| the big area of defense in motor vehicle or homicide | | | | there. |
| cases most of the time is to exclude the blood | | | | If you have a very strong case for the prosecution, |
| results. | | | | they will not be willing to do any sort of settling, so |
| The major challenge in the DUI homicide case, where | | | | you might have to take what the judge offers you. |
| obviously someone has been killed, is convincing the | | | | In a case that is not a strong case, or with |
| jury to get beyond that and look at the facts of the | | | | extenuating factors, you might have a chance of |
| case. Mitigation would come in the form of fault. In | | | | working it out. The victims culpability, the age of your |
| some cases the issue of who caused the accident | | | | client, clients lack of criminal history, or health issue |
| that lead to the homicide is a live issue and if you can | | | | with you client. For clients, the most important |
| show that the victim caused the accident (by their | | | | consideration is how long they will have to spend in |
| driving) then you may be able to mitigate the harsh | | | | jail or how long are they going to be on probation, |
| feelings toward your clients. In cases where the | | | | and how much money they will have to pay. |
| victims was in the defendant's car perhaps you can | | | | When it comes to deciding whether to try for a |
| show that the victim had a higher alcohol level than | | | | settlement versus defending clients in court, the |
| your client and gave the keys to your client so that | | | | clients understand that you are trying to work |
| he or she had to drive. Defending against a blood | | | | something out. You prepare them for this, maybe |
| alcohol reading as opposed to a breath result is more | | | | saying, "This is what I might be able to get for you |
| difficult. A blood test is much more reliable than a | | | | but if I cannot get this. This is what you may have |
| breath test so it makes it more difficult to defend | | | | to take, because if we go to trial and lose, then we |
| cases where there is a blood reading as opposed to | | | | can end up with double the sentence." If the client is |
| a breath reading. If you are involved in a motor | | | | going to fight the case, you usually know that early |
| vehicle case where the government has the blood | | | | on, and then you have to prepare them for trial. |
| reading from the hospital you will need to file a | | | | If you do not have anything to go on, considering a |
| motion to suppress the results of the blood tests. | | | | settlement is a bad idea. However, in Massachusetts |
| Some grounds for such suppression motions would | | | | there is not a lot of plea bargaining because of the |
| be that the hospital did not receive your clients | | | | minimum mandatory sentence. Unless the prosecutor |
| consent prior to drawing the blood, that your client | | | | is willing to break down some of the charges, that is |
| was incapable of providing consent due to his or her | | | | really not an option. |
| injuries or medication that was given in the course of | | | | I think the strength of the case for your client may |
| treatment at the hospital. | | | | convince the prosecutor to break down the charges. |
| For a murder charge of first or second degree, there | | | | Maybe a victim's family has some compassion for the |
| have to be certain elements present: extreme or | | | | defendant. Maybe they were in the same car or the |
| cruel atrocity on a premeditated murder, In a | | | | victim and defendant knew each other, as opposed |
| manslaughter case, the standard is that you had | | | | to a case of someone who was unknown to the |
| reckless disregard for the life of another. So there is | | | | defendant and was just driving down the road when |
| not that specific intent that you had in a murder | | | | the incident occurred. |
| case. In murder cases the prosecution has to show | | | | The process of a typical plea negotiation is to |
| that there was premeditation or extreme atrocity | | | | indicate to the prosecutor that this is something that |
| directed by the defendant to the victim. In vehicular | | | | you might try to work out. Then you would have |
| homicide cases the prosecution must show that the | | | | some discussion with the judge about resolving the |
| actions of the defendant where such that he or she | | | | case. You try to get the ranges of what the judge |
| showed a reckless disregard for life of another, | | | | would be willing to give your client. Sometimes the |
| whether is a vehicular homicide or not. Say you have | | | | judge will tell you that if the client wished to resolve |
| a motor vehicle homicide case and the authorities are | | | | the case by way of plea, the judge would give the |
| trying to figure out whether to charge manslaughter | | | | client not more than seven years but not less than |
| vs. murder, it depends on the facts of the case. For | | | | two in jail. Approximately fifty percent of these |
| instance, you have someone who is driving maybe | | | | types of cases are pleas. |
| five miles over the speed limit with a blood alcohol | | | | Overcoming Obstacles and Avoiding Mistakes |
| level that is right on the line of the legal limit, and | | | | The biggest mistake I see in DUI defense is that |
| someone is killed. He will probably get charged with | | | | sometimes lawyers do not know what information to |
| manslaughter. However, if you have someone who is | | | | seek. They do not have experience in these cases, |
| doing 120 mph going the wrong way down the | | | | so they do not know what they are looking for, |
| highway with three times the legal limit blood alcohol, | | | | they do not know what to ask for, and they do not |
| that may support a murder prosecution. I have not | | | | really know the appropriate experts. One way for a |
| seen a murder prosecution in Massachusetts in a long | | | | lawyer to learn these things is to watch a trial |
| time for a DUI case where there is a death, but I | | | | involving a skilled litigator, take a CLE class on theses |
| know in some states there have been quite a bit. I | | | | specific types of cases, take a class on the filing and |
| think it could be the difference is in the law as well. | | | | arguing of discovery motions. Some resources I |
| I only practice the Massachusetts, so I cannot speak | | | | would recommend to educate DUI defense lawyers |
| to the differences between the DUI laws in various | | | | include the West criminal series on DUI defense, an |
| states, but I do go to conferences throughout the | | | | excellent source, along with the continuing education |
| country and we learn the different strategies and | | | | training seminars, go to your local bar organization to |
| techniques for defendant DUI-Manslaughter cases. In | | | | find resources available in your area, or search the |
| Massachusetts, we have a new law that imposes a | | | | Internet for treatises or motions and memorandum |
| minimum mandatory sentence of five years in state | | | | filed on motor vehicle homicide cases. and fellow |
| prison, if you are convicted of a DUI manslaughter | | | | lawyers. |
| case. I am not sure that other states impose that | | | | Another pitfall lawyers need to be careful of is the |
| minimum mandatory sentence. The new law is called | | | | impact of the media on the case. My own personal |
| Melanie's law and went into effect I believe in | | | | view is that I do not speak with the media while the |
| January of 2006. There was a young girl named | | | | case is pending. I think the media can only hurt your |
| Melanie Powell who was killed by a woman under the | | | | case, because initially there is the report of the |
| influence in a town south of Boston. Her grandfather | | | | collision and the death. Many of the facts are |
| spearheaded the change in the law. | | | | inaccurate, and you have the potential of people |
| I think in general the pendulum has swung in the way | | | | from your jury pool reading those newspaper articles. |
| that courts treat DUI cases. The penalties are more | | | | That plays a part in people forming opinions prior to a |
| significant, and I think you are seeing people get | | | | full presentation of the evidence. |
| imprisoned and for a greater length of time than | | | | Certainly during jury selection you can try to mitigate |
| back in the early '90s. | | | | those effects. When you interview potential jurors, |
| The Role of the Attorney in Strategy Development | | | | you want to ask them if they have read anything or |
| As a lawyer, you need to become involved in the | | | | heard anything about the case, and if they have |
| DUI case right away, because there has to be | | | | formed any opinions about the case based upon |
| preservation of the evidence. The car will be seized. | | | | media reports. And if it is a very high profile case, |
| You want to have an independent blood draw done, | | | | where there has been a lot of coverage on it, you |
| or you want to have the sample preserved so you | | | | may want to file a motion to move and change the |
| can have your expert do a test on it. If the client | | | | venue of the case to another county or another part |
| does not contact you right away, the consequences | | | | of the state. |
| can be destruction of evidence. Witnesses have to | | | | All the cases dealing with DUI vehicular homicide are |
| be are interviewed early enough before their | | | | difficult, because often someone who was not doing |
| memories fade or disappear, and you must work to | | | | anything wrong has been killed. Whenever you have |
| preserve your client's rights at any court hearing. | | | | a death it is difficult, but certainly if the individual is |
| A defense strategy in a blood case is to have the | | | | young, such as a child or an unborn child, that makes |
| blood evidence suppressed. You do that by attacking | | | | for more difficult cases. Something I would not |
| the reliability of the blood test or the consent issue, | | | | recommend is making statements on the courthouse |
| that your client was incapable of giving consent to | | | | steps about details of the case and try to show |
| have his blood drawn. In situation where your client | | | | compassion as much as you can for all the parties |
| has a head injury as a result of the collision and is not | | | | involved. |
| clear in his or her thinking then they may be incapable | | | | As the law stands now in Massachusetts, my basic |
| of informed consent. Or where the hospital staff or | | | | advice for DUI defense is to get in the case as early |
| emt's on scene have administered narcotics to your | | | | as you can, assemble a good, solid group of experts, |
| client to treat his or her condition prior to receiving | | | | and manage client expectations. Establish a good |
| the consent, then consent may have not been given | | | | rapport and relationship with the prosecutor if you |
| voluntarily by your client. Another strategy is to | | | | can. You have to know the field sobriety issues, and |
| prove the accident was not your client's fault. You | | | | for the state's experts you have to be able to |
| always have causation; your client has not caused | | | | cross-examine the blood experts as well. You need |
| the death of another. If it is a two or three-car pileup | | | | to have a good handle on the scientific issues raised |
| on a highway, there must be an intervening cause. | | | | in the blood or Breathalyzer case, and strong litigation |
| Maybe someone struck your client's car. | | | | skills to be able to cross-examine a police officer. |
| Before determining the strategy, you have to wait | | | | The Future of DUI Defense |
| to see what evidence the prosecution has against | | | | The Supreme Court has just decided in Diaz vs. |
| your client, because that will direct you towards your | | | | Commonwealth of Massachusetts, a drug case, which |
| defense. It might be multiple defenses. It might be | | | | we think will change a lot of scientific cases. The |
| causation. The blood draw was done inappropriately | | | | issue in that case was that in drug prosecutions in |
| or done without consent. You might say: "My client | | | | the Commonwealth, when drugs are seized and sent |
| was not under the influence. His blood was drawn six | | | | to the lab for forensic testing, the lab then sends a |
| hours after the accident, and nobody knows what his | | | | certificate indicating what the substance was and |
| blood was at the time he was behind the wheel. We | | | | how much it weighed. That was prima facie evidence |
| only know what it was four or five hours after the | | | | that the substance was a drug and the quantity. Now |
| incident," and with a blood alcohol level there is a | | | | the courts have said they cannot do that anymore; |
| curve that goes up and then down. | | | | they have to bring in the chemists who tested the |
| Using Experts and Analyzing Evidence | | | | drug and subject them to cross examination. I think |
| For an attorney to understand the scientific elements | | | | this will apply to DUI manslaughter cases on the blood |
| behind DUI vehicular homicide, you have to have a lot | | | | certificate as well. This will be good for defendants |
| of training. I was a prosecutor for eight years, plus I | | | | because it will make it a little more difficult to prove |
| have been to a lot of seminars and have spoken | | | | the case. I think it is more fair as well, because it |
| with toxicologists. You just have to study the | | | | gives the client the opportunity to cross-examine the |
| toxicology. | | | | person who conducted the forensic tests. |
| Usually the defense attorney is not involved in a field | | | | Some DUI laws are on the verge of change, which |
| investigation because that usually occurs within four | | | | could impact homicide cases in the future. For |
| or five hours of the accident, in Massachusetts. The | | | | example, in some states it is admissible to mention |
| accident reconstruction on a motor vehicle homicide is | | | | that your client refused the Breathalyzer. If your |
| done right at the scene, and usually concluded within | | | | client is charged with DUI, taken to the police station, |
| 45 hours. I would get the accident reconstruction | | | | had an opportunity to take the Breathalyzer, and |
| report within 30 to 60 days, and I would then send it | | | | refused, in many states the prosecutor can tell the |
| to my expert to analyze. | | | | jury your client refused a Breathalyzer test. |
| Experts are helpful in that they give a different | | | | Massachusetts is one of the states where that is not |
| opinion. Usually the accident reconstruction report is | | | | allowed, but there is a movement to change the law. |
| done by the police department, and it certainly puts | | | | Massachusetts' courts have ruled that allowing a |
| blame at your client. An expert can pick apart that | | | | prosecutor to do that infringes upon your right to |
| report and give different measurements and come | | | | remain silent. You are saying you do not want to |
| to a different conclusion, that the accident was not | | | | take the test and you do not want to furnish |
| the result of your client's driving. Experts are also | | | | evidence against yourself. When you do that, you |
| useful in debunking myths about evidence and police | | | | are not supposed to be allowed to tell anybody that. |
| procedure. I use an expert to talk about the blood | | | | I think the practical effect is that if you are on a DUI |
| draw. Was it an alcohol swab? Was your person | | | | manslaughter jury and you hear that somebody had |
| diabetic? What sort of drugs did they administer at | | | | a chance to take the Breathalyzer and refused, the |
| the hospital prior to getting the blood draw? How as | | | | general consensus is that the defendant must have |
| the blood tested, by gas chromatography or some | | | | been over the legal limit and that is why he refused. I |
| other method. What were the qualifications of the | | | | think that is how most people see it. The movement |
| person who drew the blood, who tested it and who | | | | to change the law is rooted in the belief that by |
| converted it to a breath reading, so I employ a | | | | telling the jury someone refused the breath test |
| forensic toxicologist in most of my cases of that | | | | they will be ore likely to convict, this movement will |
| nature. | | | | not succeed anytime soon. If there is a change in this |
| The benefits of using experts are pretty obvious. | | | | aspect of the law the defense will have to learn to |
| They essentially give you a fighting chance. You have | | | | suggest to the jury why someone may refuse to |
| to combat the state's expert testimony. The | | | | take the breath test other than because they fear |
| downside of an expert comes when they are not | | | | they may be over the legal limit. |
| prepared properly. They are subject to | | | | |