7 Worst Mistakes Lawyers Make in Defending Drunk Driving Cases

The following is information on the worst mistakes an attorney can make when defending a DUI client in Michigan.

Nearly every drunk driving case involves either a breath or blood test. In Michigan, the breath testing device is called a DataMaster. Once a sample of your breath is captured by the machine the DataMaster device uses infrared spectrometry to measure the amount of alcohol contained therein. The numerical reading rendered by the machine is really nothing more than a guess as to your blood alcohol level because the number is based on a mathematical conversion from a breath alcohol level to a blood alcohol level. The accuracy of this guess will depend in part on how closely you mimic the hypothetical "average person". This is because the DataMaster device assumes that you are average when making its determination.

On the other hand, if your blood was tested rather than your breath, then this blood sample may have been analysed using three different testing methods. However, most often your blood will be sent to the Michigan State Forensic lab for testing, and they use gas chromatography to determine your "whole blood" alcohol level. Gas chromatography is often called the "gold standard", and there can really be no argument that this type of blood testing is more accurate than breath testing, but even with blood testing by gas chromatography problems can and do arise.

With a blood case your attorney must have a thorough knowledege of these issues to determine what problems may have arisen in your case. To learn more the possible problems with blood testing, and how they may apply in your case, it may be helpful for you to review the following article on blood testing: Understanding Quantitative Blood Alcohol Testing in Drunk Driving Cases, Michigan Bar Journal, Volume 82, No. 8, August 2003.

Because there are so many potential limitations to chemical testing, unless a Michigan DUI attorney has taken the time to gain a high level of knowledge regarding these issues and testing protocols, you may miss out on defenses to your case that could lead to a dismissal or a significant reduction. It is also possible for you to be wrongfully convicted. Don't let that happen by retaining an unqualified lawyer.

With a typical drunk driving case the police officer's investigation will begin with the observation of the driving, and will continue until you are arrested. (Usually this occurs when you are handcuffed and placed into the patrol vehicle). This investigation will include several parts or "phases", and will most often conclude with a series of field tasks.

The National Highway Traffic Safety Administration has developed standardized procedures for the administration of the three FSTs which NHTSA considers the most reliable. These standardized FSTs (SFSTs) are taught to and used by police officers across the country. The SFSTs are designed to be used by police officers to establish probable cause to arrest individuals who are under suspicion of driving while intoxicated and to support the administration of a breathalyzer test which measures more directly a persons blood alcohol content (BAC). As direct, independent evidence of intoxication, however, SFSTs are extremely unreliable and have an immense margin of error. Furthermore, individual officers often administer the tests differently or under non-ideal testing circumstances, further reducing their reliability. Like chemical evidence, unless your attorney knows how the officer is supposed to conduct his/her investigation, and can compare that with what was actually done in your case, you are likely to miss significant defenses.

Alcohol is an organic chemical that has a particular molecular structure that is recognized by the breath testing machine. The type of alcohol that people drink in adult beverages is called "ethyl" alcohol. Ethyl alcohol has many very unique characteristics, and one is the way in which the human body clears or metabolized this chemical. It can be argued that because of these unique characteristics, certain predications can sometimes be made if certain facts are known. These facts include the amount and type of alcohol consumed, the time taken to consume it, the gender and weight of the individual, and the amount of the food in the stomach.

Once these factors have been ascertained, a mathematical formula called the "Widmark Formula" can be used to fashion a guess as to one's blood alcohol level at a particular point in time (usually the time of driving). It is likely that the prosecutor will give great weight to this calculation, and might even use it against you in order to gain a conviction. Again, unless your attorney understands these issues, and how Widmark is often wrong, important defenses can be missed. As with the above possible mistakes and failures it is also possible for you to be wrongfully convicted.

The only way to aggressively defend a drunk driving case is to make the police and prosecutor produce every possible piece of evidence. This will begin with an exhaustive discovery demand, and will continue until all evidence has been obtained and reviewed. This will include at a minimum the arresting officer(s)' narrative report, videotapes from the patrol vehicle and of the station where your breath or blood was testing, and all documents and things that might show that the breath or blood testing devices were not working properly when used in your case. It should also include an exhaustive interview with you to learn about your particular facts and circumstances. Far too often attorneys will speak with their perspective clients for only a short time, and then review the narrative report only for the first time at the pretrial. Armed with this exquisite ignorance about your case, he/she will then convince you to plead guilty.

This is all done BEFORE the attorney has really explored your case or has even attempted to obtain and review ALL of the evidence! Make sure your attorney has the knowledge and skill necessary to properly evaluate all aspects of your case, and this begins with a thorough client interview when you first meet. Otherwise you will not be "fully informed" when your attorney stands next to you in court as you plead guilty.

You wouldn't have been arrested if the officer did not believe that you were intoxicated or impaired. However, this opinion can be based on unreliable evidence. For example, your attorney should be asking how the conditions of the roadside may have affected your performance on the field tasks (such as the walk-and-turn or one-leg stand). Unless your attorney investigates these issues with you and determines how they may have effected the observations and conclusions of the arresting officer, then his/her opinion will be given undue weight in determining the outcome of your case. Make sure you hire a lawyer that is willing to do the work necessary to find and pursue these issues as well!

Being charged with the crime of drunk driving is one of the most stress provoking things that can happen to you. One of the best ways to deal with this stress is to learn as much as you can about the charges and the evidence collected. Your attorney should be the best source of this information, yet the worst single complaint heard about attorneys is; "he/she didn't keep me informed". When deciding which attorney you hire to represent you, make sure you ask how they will be communicating with you, and how often. Perhaps most importantly, make sure your attorney provides you with your own copy of all of the discovery documents, including the police reports. As you learn more about the facts of your case, and about the "process", your stress will inevitably decrease.

There are several different kinds of fee agreements, and these range from an hourly agreement, where the attorney charges for each hour or fraction of an hour, to a flat rate for the entire service provided. It is important that you have a clear understanding of exactly how these fees will assessed in your case. You should also understand the costs for which you may be required to reimburse your attorney. For example, whatever attorney fee you pay this will not normally include the costs involved in retaining one or more expert witnesses to assist in your defense.

Make sure you understand what the total attorney fees will be and also make sure that you have been provided with a good estimate of the total costs. Insist also that the understanding you've reached with your attorney be reduced to a detailed written fee agreement. The bottom line is to make sure there will be no surprises. You're under enough stress as it is, don't let your attorney/client relationship cause even more stress!